Appeal 2007-0404
Application 10/684,611
identical foamed cells to those of the claimed foamed layer. See In re
Spada, 911 F.2d 705, 708, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
For the foregoing reasons and those stated in the Answer, we
determine that the Examiner has established a prima facie case of
anticipation in view of Park or Hayes, which case has not been adequately
rebutted by Appellant’s arguments. Therefore, we affirm the rejections on
appeal based on §102 (b) over Park and § 102(e) over Hayes.
B. The Rejections based on § 103(a)
In addition to the factual findings listed above, we determine the
following factual findings from the record in this appeal:
(1) Park teaches various combinations of layers to form multilayer
containers, such as foam layers of polypropylene and functional layers (col.
8, l. 28-col. 9, l. 59);
(2) Hayes teaches multilayer laminates for use in food packaging
where the foam layer is made from a copolyester for improved
biodegradability, thermal properties, and water vapor resistance, and may be
combined with PET films (col. 1, ll. 5-6; col. 2, ll. 25-27; col. 8, ll. 6-8; col.
9, l. 61-col. 10, l. 8);
(3) Haase teaches a dinner plate formed from a polystyrene foam layer
sandwiched between two polystyrene layers (col. 1, ll. 24-31; col. 3, ll. 9-
14); and
(4) Kocher discloses a food container comprising a support member
12 which may be foamed, and a gas-impermeable sealant film 34, where
both layers may be made from PET resin or they may be different resins
(col. 10, ll. 8-39).
8
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