Appeal 2007-1890
Application 10/444,624
134 USPQ 256, 258 (CCPA 1962); cf., In re Hedges, 783 F.2d 1038, 1039-
40, 228 USPQ 685, 686 (Fed. Cir. 1986).
Applying the preceding legal principles to the factual findings in the
record of this appeal, we determine that the Examiner has properly
established a prima facie case of obviousness, which case has not been
adequately rebutted by Appellants’ arguments and evidence. As shown by
factual finding (1) listed above, and not disputed by Appellants, we
determine that Blinka discloses a multilayer film identical to the multilayer
film recited in claim 1 on appeal with two exceptions: (1) Blinka is silent
regarding the oxygen transmission rate of the oxygen barrier layer; and (2)
Blinka does not disclose the use of an antifog agent (Answer 3). As shown
by factual findings (2) and/or (3) listed above, we determine that it was well
known in the packaging art for oxygen-sensitive food products to use antifog
agents in an outer layer film to produce a clear view of the final product for
the consumer, as well as other benefits.1 As shown by factual finding (3)
listed above, we determine that Appellants admit that it was known to use
antifog agents in packaging films, and typical films included antifog agents
in both outside layers. We note that claim 1 on appeal does not exclude the
second outer layer from including an antifog agent since clause c) of claim 1
recites the open transitional term “comprising.” Accordingly, we determine
1 As correctly stated by the Examiner (Answer 5), Appellants’ argument that
the oxygen transmission rate of Kuo is much higher than the rate recited in
claim 1 on appeal (Br. 10) is irrelevant to the issue presented in this appeal.
We also note that the oxygen transmission rate of Kuo cannot be compared
with the claimed rate since the disclosed rate of Kuo is applicable to the
entire multilayer film while the claimed rate is directed solely to the oxygen
barrier layer (compare Kuo, Abstract, and claim 1 on appeal, clause d).
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