Appeal 2007-2851
Application 10/308,702
within the broad scope of the appealed claims and the film structures fairly
described by Barkis and Idea.
Appealed claim 1 encompasses a film structure having a base layer of
any thermoplastic polymer and any thermoplastic polymer having a melting
point not more than 230°F. Manifestly, the claim embraces an untold
myriad of polymeric layers, as well as an untold number of processing
parameters effected during the coextrusion process, for example,
temperature, pressure, size of extruder slit, etc. Consequently, Appellants’
burden is not insignificant in demonstrating, with objective evidence and not
just opinion, that the vast number of coextruded, biaxially oriented film
structures within the scope of the appealed claims necessarily have a
difference in structure than the films of Barkis and Idea that is significant in
terms of measurable properties. As pointed out by the Examiner,
Appellants’ Declaration is totally devoid of any objective evidence, let alone
evidence which compares coextruded polymer films with non-coextruded
films of the same polymeric compositions. As a result, we concur with the
Examiner that Appellants have not shouldered their burden of establishing
on this record that film structures within the broad scope of the appealed
claims are necessarily patentably distinct from the film structures fairly
described by Barkis and Idea.
We will also sustain the Examiner’s § 102 rejection of claims 30-34
and 36 over Breidt. As explained by the Examiner, Breidt discloses a
laminar thermoplastic film comprising a polypropylene substrate and skin
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