Appeal 2006-2805
Application 09/843,990
To remedy the deficiency of the admitted prior art, the Examiner
relies upon Gill for teaching a polyamide having a melting point within the
claimed range "for the purpose of producing a strong bond" (see Office
Action mailed May 6, 2004, page 3). According to the Examiner, it would
have been obvious for one of ordinary skill in the art to practice the process
of the admitted prior art by using the known polyamide disclosed by Gill in
order to create a strong bond.
We agree with Appellants that the problem of modifying the admitted
prior art in accordance with Gill is at least two-fold. First, the admitted prior
art provides a strong teaching away from utilizing an inner polyamide layer
having a melting point of 160ºC and below. Secondly, Gill is not directed to
a process for packaging a product with a flexible, heat-shrinkable bag but,
rather, is directed to bonding fabrics using a fusible adhesive comprising a
polyamide. Consequently, we do not find that one of ordinary skill in the art
would have been motivated to proceed against the expressed teachings of the
admitted prior art in selecting a polyamide for the inner layer that is taught
by Gill for use in a different process. While the Examiner restates
Appellants' argument at page 5 of the Answer, the Examiner offers no more
in rebuttal than "the motivation comes from the references themselves and it
is not repugnant for the teachings to come from a reference which may
appear to be non-analogous" (second paragraph). This falls far short of the
requisite analyses pertaining to why one of ordinary skill in the art would
have ignored the specific teachings of the admitted prior art in selecting the
polyamide of the inner layer. Although the Examiner goes on to explain that
the use of a lower melting polymer is always desirable in order to save
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