Appeal No. 2007-1111 Page 5
Application No. 10/126,804
the black PETG of EPO 653.” Brief, page 8. We disagree. In our opinion, a
person of ordinary skill in the art would have appreciated that metal flakes would
not only enhance the rigidity of the container but also the container’s opacity.
Accordingly, as discussed above, we agree with the examiner’s reasoning that a
person of ordinary skill in the art would have found it prima facie obvious to add
metal flakes to the container of ‘653. In addition, we are not persuaded by
appellants’ focus on “black PETG” which is simply a preferred embodiment of
‘653. See ‘653, column 4, lines 37-46, emphasis added,
[t]he sidewall 36, bottom 38 and top flange 44 are integrally formed
from a sheet of flexible material that provides a substantial barrier
to the transmission of light, oxygen and water vapor. Preferably,
the sheet of flexible material forming the, sidewall 36, bottom 38
and top flange 44 is black 0.33 mm thick polyethylene terephthalate
glycol (“ODAR” brand PETG no. 6763, Kodak Chemical Company)
that is treated with a silicone release agent (no. 24, Dow Chemical).
In our opinion, a person of ordinary skill in the art would have recognized that the
container material could have been prepared with carbon black “to prevent
actinic light from reaching the dental composition contained therein.” Wilcox,
column 3, lines 26-28.
According to appellants (Brief, bridging paragraph, pages 5-6), Wilcox
does not appreciate that aluminum flake can be used to make a container
opaque to transmission of light in the range set forth in claim 1. We are not
persuaded by appellants’ assertion. As discussed above, Wilcox recognized that
aluminum flake can be used to enhance the rigidity of the container. This alone
is sufficient motivation to incorporate aluminum flake into the ‘653 container.
There is no evidence on this record to demonstrate that the incorporation of
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