Appeal 2007-0061
Application 09/531,978
claim 56). According to the Examiner, the difference in the tensile modulus
between the machine direction (MD) and cross direction (CD) is not a
structural difference in the multilayer film, it is merely a semantic
difference. Therefore, according to the Examiner, Nagura meets the
limitation because it includes a disclosure of a film with a tensile modulus
(Young’s modulus) of 103 kg/mm2 (146,500 psi) in one direction and 180
kg/mm2 (256,000 psi) in the other direction (Answer 4; see also Nagura,
Example 1 at p. 15, ll. 3-8). The Examiner alternatively reasons that because
of the well-known association of biaxial orientation with increasing strength
and other expected results, it would have been obvious to have optimized it
(Answer 4-5).
Appellants contend that the Examiner has not established anticipation
because the directional constraints of the claims are not merely semantic
differences, they represent a structural difference. The MD and CD are not
interchangeable in labelstock (Reply Br. 2-3). Appellants further contend
that the Examiner has not established obviousness because Nagura does not
suggest optimizing the orientation and modulus properties of the claims,
instead Nagura would have taught away from the claimed amounts (Br. 14).
The issues arising out of the contentions of the Appellants and the
Examiner are (1) Has the Examiner reasonably interpreted claim 56 such
that it encompasses a labelstock having a multilayer film of the claimed
tensile modulus? and (2) Does a preponderance of the evidence support the
Examiner’s determination that the magnitude of biaxial orientation was a
matter of routine optimization of a known variable in the artificial paper and
label art, the result being predictable and therefore obvious?
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