Appeal 2007-2440
Application 10/913,902
(FF 4, 7). Although there is no question that pressure-sensitive adhesive
layer 12 is a cohesive layer, the Examiner has not made any attempt to
explain how release layer 5 might be fairly characterized as a "cohesive
layer." as defined by the Varanese specification (FF 1) and used in the
Varanese claims. It is a matter of common experience that release layers,
such as the backing of metallized strips of adhesive duct tape, or the bottom
sheet of a pad of self-sticking removal note sheets (Post-itŪ) do not adhere
to themselves. Because they do not adhere to like materials, they do not
have cohesive layers at their surfaces, as their name implies.
Moreover, the Examiner's belated argument (FF 16) that the
substitution of the Kobe rubbers "in the same dual manner as in Miller"
would meet the claimed subject matter and render it obvious ignores Kobe's
teaching that its non-tacky fastening system involves two surfaces, one of
which has "essentially no tack," and the other of which is "non-tacky"
(FF 10). Again, the Examiner has not attempted to explain how the Kobe
rubbers—particularly the non-tacky rubber—are cohesive substances.
Both the Examiner's original conclusion that Miller provides two
cohesive surfaces and the alternative conclusion that the substitution of
rubbers disclosed by Kobe for the layers taught by Miller, however
characterized, would have rendered the claimed subject matter obvious are
based on faulty premises. As Varanese has argued, the Examiner has erred
in concluding that the claimed container would have been obvious over the
combined teachings of Miller and Kobe.
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