Appeal 2006-2805
Application 09/843,990
Appealed claims 21-23, 25-27, and 29-33 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over the admitted prior art
(Nishimoto) in view of Gill. Claim 28 stands rejected under 35 U.S.C. § 103
as being unpatentable over the stated combination of references further in
view of Oberle.
We have carefully reviewed the respective positions advanced by
Appellants and the Examiner. In so doing, we find ourselves in agreement
with Appellants that the Examiner has failed to establish a prima facie case
of obviousness for the claimed subject matter. Accordingly, we will not
sustain the Examiner's rejections.
There is no dispute that Nishimoto discloses the claimed process for
packaging a product with the exception of not disclosing the claimed third
layer of a polyamide having a melting point of 160ēC and below. As
stressed by Appellants, Nishimoto teaches an "intermediate layer of a
polyamide having a melting point of higher than 160ēC. and lower than
210ēC." (col. 2, ll. 29-31), and the reference further explains that "[i]n order
to facilitate the stretching of a laminate of the polyamide and the polyester,
an aliphatic polyamide having a melting point of more than 160ēC. and
lower than 210ēC. is preferably used" (sentenced bridging columns 2 and 3).
In addition, Appellants point to comparative examples in Nishimoto to
demonstrate that polyamides having a melting point outside the disclosed
range of 160ēC-210ēC produce unfavorable results. Significantly, Nishimoto
provides no teaching that one may utilize a polyamide having a melting
point outside the disclosed range and achieve acceptable results.
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