Appeal 2007-2440
Application 10/913,902
with the rubbers recommended by Kobe, because the substitution of suitable
materials would have been an obvious matter of design choice and in order
to gain the advantages taught by Kobe. (Answer at 3–4.)
15. Varanese objects that Miller does not teach the use of two cohesive
layers. (Br. at 6.)
16. The Examiner responds that "[o]ne of ordinary skill in the art in
substituting the reclosure of Kobe for the closure of Miller would apply the
cohesive materials and reclosure in the same dual manner [a]s in Miller, i.e.,
one on each of the sealing surfaces. Thus, two cohesive layers would be
present." (Answer at 4.)
C. Discussion
Obviousness is a conclusion of law based on underlying findings of
fact. In re Gartside, 203 F.3d 1305, 1316, 53 USPQ2d 1769, 1778
(Fed. Cir. 2000). If the underlying findings of fact are erroneous, the legal
conclusion cannot stand.
The claimed container comprises two cohesive layers that contact and
bond to one another. Both layers must be "cohesive,", i.e., they must adhere
to a material of like nature, as required by the Varanese specification. (FF 1;
Specification at 5:26–27.)
In the present case, the Examiner has misapprehended the teachings of
both Miller and Kobe. Miller does not, contrary to the Examiner, teach a
"pressure-sensitive adhesive reclosure comprising two pressure-sensitive
adhesive layers (5, 12)." (FF 12). Rather, Miller teaches that layer 12 is a
pressure sensitive adhesive layer (FF 4, 6) and that layer 5 is a release layer
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