Appeal 2007-3167
Application 10/320,295
1 not a teaching away from using a plastic liner, since the disclosure of a paper
2 liner would not lead an artisan away from using a plastic material for the
3 liner.
4 In addition, we note that Nakamura is not limited to the use of a
5 confectionary as the object to be packaged. From the description of
6 "confectionary or the like" and referral to the packaged material as a bulky
7 product (facts 2 and 4) we find that any suitable bulky material can be
8 placed in the package, such as the soap bar packaged with a liner as taught
9 by Will (facts 6-7). Nor are we persuaded by Appellant's assertion (Reply
10 Br. 2) that the angular tube of Nakamura doesn't meet the claimed "stiff
11 sheet material." From the description in Nakamura that the bulky product to
12 be packaged is surrounded by a transparent rigid film sheet 1, we disagree
13 with Appellant that the transparent rigid film sheet material is not a stiff
14 sheet material. Nor are we persuaded by Appellant's assertion (id.) that the
15 angular tube of Nakamura is not stiff sheet material due to the presence of its
16 right angle bends. The transparent rigid film sheet of Nakamura is a sheet
17 before it is bent into the tube shape to receive the bulky product, and there is
18 nothing in the language of the process of claim 23 that would preclude the
19 sheet being wrapped around in a manner that results in creases or right
20 angles. In prosecution before the Patent & Trademark Office, there is no
21 reason why Appellant cannot amend the claims to distinguish over the prior
22 art. We decline to read into the claims limitations not found therein.
23 From all of the above, we hold that Appellant has not met the burden
24 of showing error on the part of the Examiner in rejecting claims 23-27 under
25 35 U.S.C. § 103(a).
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