Appeal 2007-1890
Application 10/444,624
that the subject matter of the claims on appeal “only unites old elements with
no change in their respective functions.” KSR, 127 S. Ct. at 1739,
82 USPQ2d at 1395, quoting Great Atlantic & Pacific Tea Co. v.
Supermarket Equipment Corp., 340 U.S. 147, 152 (1950). We agree with
the Examiner that the oxygen barrier film disclosed by Blinka would
reasonably appear to have the same or similar oxygen transmission rates to
those required by claim 1 on appeal since the components of each oxygen
barrier film may be the same (Answer 3 and 5).
With regard to secondary considerations, we note that Appellants state
that the “present specification amply illustrates examples that show the
efficacy of using certain antifog agents in a film or laminate that also
includes an oxygen scavenger” (Br. 12). However, Appellants do not state
or allege that unexpected results have been shown, provide no analysis of the
data but only state that “the reader is invited” to examine the data, and fail to
show that any data and results are commensurate in scope with the claimed
subject matter. Accordingly, we determine that Appellants have not met
their burden of establishing that any results in the Specification are indeed
unexpected and commensurate in scope with the claimed subject matter. See
In re Rinehart, 531 F.2d 1048, 1052, 189 USPQ 143, 147 (CCPA 1976).
For the foregoing reasons and those stated in the Answer, we affirm
the rejection of the claims on appeal under § 103(a) over Blinka in view of
Kuo. The decision of the Examiner is affirmed.
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