Appeal 2007-2851
Application 10/308,702
intermediate layer between the thermoplastic polymer and the polypropylene
base. However, we agree with the Examiner that Liu evidences the
obviousness of applying a blend of LLDPE and polypropylene or an
ethylene-propylene copolymer between the polypropylene base and
thermoplastic polymer of Idea.
Appellants appear to not argue the prima facie case of obviousness.
Rather, Appellants cite Specification data as evidence of unexpected results.
The Example at page 25 of the Specification demonstrates greater adhesion
for an intermediate layer containing the claimed ethylene compared to an
intermediate layer not containing ethylene but primed with a water-based
primer. However, we are in full agreement with the Examiner that this
extremely limited comparative showing is hardly commensurate in scope
with the degree of protection sought by the appealed claims. In re Grasselli,
713 F.2d 731, 743, 218 USPQ 769, 778 (Fed. Cir. 1983); In re Clemens,
622 F.2d 1029, 1035, 206 USPQ 289, 296 (CCPA 1980). As noted by the
Examiner, the showing is limited to one particular outer layer, EVA, and one
particular immediate layer, whereas claim 18 places absolutely no limitation
on the composition of the outer layer and broadly claims any “ethylene
polymer,” which encompasses a universe of ethylene homopolymers and
copolymers. Also, inasmuch as Liu expressly teaches that the intermediate
layer results in an increase of adhesion to the core layer, it would seem that
Appellants’ Specification Example only demonstrates what would have been
expected by one of ordinary skill in the art. Just as unexpected results are
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