Appeal 2006-2335
Application 09/851,460
in this art would have known to use certain amounts of inorganic filler in a
polypropylene film laminate to achieve desired properties (Answer 7;
Hattori 4:51-56). Appellants have not alleged nor shown criticality for the
amount of filler. See In re Woodruff, supra.
With regard to the rejection of claims 13 and 14, Appellants argue
that these claims recite the formation of packaging on an FFS machine, and
neither Bochow nor Hattori teach this limitation (Reply Br. 3). This
argument is not persuasive. Claims 13 and 14 are drawn to a product (a
packaging material) formed by a process (thermo-forming) on a FFS
machine. Therefore we consider the patentability of the product in view of
the prior art, not the process by which it is made. See In re Wertheim,
541 F.2d 257, 271, 191 USPQ 90, 103 (CCPA 1976). Furthermore, both
references teach that the product has use as packaging and has some degree
of thermoformability, therefore rendering obvious the use of the product in a
thermoforming process on any well known machine to form packaging
material. See Bochow 1:5-11, 47, and Hattori 1:5-23.
Appellants again argue that the comparative tests provided show
unexpected results (Br. 23). However, these results are not persuasive for
reasons discussed above.
Based on the totality of the record, including due consideration of
Appellants’ arguments and evidence, we determine that the preponderance
of evidence weighs most heavily in favor of obviousness within the meaning
of § 103(a). Therefore we affirm the rejection over Bochow in view of
Hattori.
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