Appeal 2006-2335
Application 09/851,460
polypropylene layer of the laminate disclosed by Bochow to improve the
heat resistance, stiffness, and dimensional stability, as taught by Hattori (id.).
Appellants argue that Bochow “teaches away” from the claimed
invention since this reference desires “limited thermoformability” while
Appellants want an “improved thermoformability” (Br. 21). This argument
is not persuasive. Appellants have not established that the “limited
thermoformabilty” taught by Bochow (1:47) differs in any substantial way
from Appellants’ “improved thermoformability.” Therefore we determine
that Bochow does not lead away from the objective of Appellants’ invention.
See In re Gurley, supra. Furthermore, this property is not recited in the
claims on appeal (with the exception of claims 13 and 14 discussed below).
Appellants argue that neither Bochow nor Hattori contain any
guidance regarding adjusting the thickness ratio (Br. 22). This argument is
not well taken since Bochow alone teaches various thickness ranges for each
layer that produce thickness ratios overlapping the claimed ranges (Answer
6-7; see Bochow 2:54-59). Overlapping ranges creates a prima facie case of
obviousness. See In re Peterson, 315 F.3d 1325, 1329-30, 65 USPQ2d
1379, 1382-83 (Fed. Cir. 2003). We note that Hattori was not applied by the
Examiner for any teaching of thicknesses (Answer 7).
Appellants argue that Hattori does not disclose that the unfilled layers
comprise a barrier layer and a sealing layer, and there would be no reason to
combine the disclosures of Bochow and Hattori since each reference has a
different objective (Br. 24). These arguments are not persuasive. Both
references are concerned with stiffness and some amount of
thermoformability, as admitted by Appellants (Br. 24). We note that Hattori
has merely been applied by the Examiner to show that one of ordinary skill
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