Appeal 2007-2967
Application 10/274,827
In order to determine whether a prima facie case of obviousness has
been established, we considered the factors set forth in Graham v. John
Deere Co., 383 U.S. 1, 17 (1996); (1) the scope and content of the prior art;
(2) the differences between the prior art and the claims at issue; (3) the level
of ordinary skill in the relevant art; and (4) objective evidence of
nonobviousness, if present.
Flieger describes “a consumable package . . . which comprises: a
container and a melt-processable product retained therein” (Flieger, col. 1, ll.
35-36). Melt-processable products include hot-melt adhesives (id. at col. 1,
ll. 52-60). The container portion of the consumable package comprises a
“flat extruded or blown extruded film of a film-forming ethylene copolymer
which has a melting point lower than the temperature of the melt processing
operation used for the packaged product and a stiffness as measured by
ASTM D 882 greater than 400 megapascals. Typically such copolymers
will be ethylene/acid copolymers and ionomers derived therefrom” (id. at
col. 1, l. 63 to col. 2, l. 2). Flieger’s focus is on producing a copolymer with
“[t]he correct combination of melting point and stiffness” for a given
application (id. at col. 2, ll. 14-25).
Flieger teaches that “[t]he film for the [container] can be formed of
one layer or it can be of several coextruded layers, each layer providing
different properties for different kinds of contents protection” (id. at col. 2,
ll. 64-67).
Appellants acknowledge that Flieger “discloses that the film can be
formed of several coextruded layers, each layer providing ‘different
properties for different kinds of contents protection,’” but argue that “the
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