Appeal 2007-2915
Application 10/151,637
random copolymer inner surface layer facilitated release and/or removal of
one object (a nested container) stuck inside the plastic container, it would
have been expected that the use of the same generally nonstick inner GMS-
containing-ethylene-polypropylene random copolymer inner surface layer to
facilitate release and/or removal of another object (a food product) stuck
inside the plastic container would be successful (Answer at 5). See e.g., KSR
127 S.Ct. at 1740, 82 USPQ2d at 1396 (“if a technique has been used to
improve one device, a person of ordinary skill in the art would recognize
that it would improve similar devices in the same way, using the technique is
obvious unless its actual application is beyond his or her skill”). “A person
of ordinary skill in the art is also a person of ordinary creativity, not an
automaton.” Id. 127 S.Ct. at 1742, 82 USPQ2d at 1397. Finally, as
additional motivation for combining the teachings of Schwarz and Wilkie,
the Examiner noted that the Wilkie’s film is said to have good
machineability and stiffness, among other advantages (Answer at 6).
It is well settled that optimization of a result effective variable, in this
case, the amount of release agent used or thickness of a layer, is within
ordinary skill. In re Peterson, 315 F.3d 1325, 1330, 65 USPQ2d 1379,
1382-83 (Fed. Cir. 2003) (determining where in a disclosed set of percentage
ranges the optimum combination of percentages lies is prima facie obvious).
Wilkie teaches the general thicknesses of GMS-containing-ethylene-
polypropylene random copolymer inner surface layer and the general
amounts of GMS to be incorporated therein, i.e., a sufficient amount of
GMS to significantly decrease the friction of the layer and increase its
release properties (FFs 14-16). Appellants have not pointed to any evidence
of record that might establish that using Wilkie’s film as the polyolefin layer
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