Ex parte Moore et al.

Board of Patent Appeals and Interferences

Jun 19, 2000

08298088 (B.P.A.I. Jun. 19, 2000)

1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1) was not written for
publication in a law journal and (2) is not binding precedent of the Board.
Paper No. 20
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte NEAL E. MOORE and DANILO O. DE LA CRUZ
_____________
Appeal No. 1997-1602
Application No. 08/298,088
______________
ON BRIEF
_______________
Before GARRIS, WARREN and LIEBERMAN, Administrative Patent Judges.
GARRIS, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal from the final rejection of claims 1, 2, 4, 5 and 7
which are all of the claims remaining in the application.
The subject matter on appeal relates to a cast extruded plastic film having a layer
comprising a blend of a polyester, a copolymer of ethylene and a comonomer
selected from the group consisting of various acrylates, and a copolymer of ethylene
and a comonomer selected from the group consisting of acrylic acid and methacrylic acid.
Appeal No. 1997-1602
Application No. 08/298,088
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The above-mentioned layer possesses various properties desirable for films used
in packaging snack food and other consumer goods and to this layer is vacuum deposited
with a specified bond strength, a metal such as aluminum as is also desirable for films
used in packaging of the type previously noted. This appealed subject matter is
adequately illustrated by independent claim 1, a copy of which taken from the appellants'
brief is appended to this decision.
The references relied upon by the examiner as evidence of obviousness are:
Shih 4,010,222 Mar. 01, 1977
Takahashi et al. (Takahashi) 4,859,741 Aug. 22, 1989
Bittscheidt et al. (Bittscheidt) 4,891,406 Jan. 02, 1990
Golder 5,039,744 Aug. 13, 1991
Fukuda et al. (Fukuda) 5,059,470 Oct. 22, 1991
Swisher 5,112,462 May 12, 1992
Nakane et al. (Nakane) 5,173,357 Dec. 22, 1992
Super et al. (Super) 5,209,972 May 11, 1993
All of the appealed claims stand rejected under 35 U.S.C. § 103 as being
unpatentable over Bittscheidt or Takahashi or Golder in view of Fukuda and Nakane and
Shih and Super and Swisher.
We refer to the brief and to the answer for a thorough discussion of the opposing
viewpoints expressed by the appellants and the examiner concerning the above-noted
rejection.
Appeal No. 1997-1602
Application No. 08/298,088
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OPINION
This rejection cannot be sustained.
As correctly indicated by the appellants in the brief, the teachings of the applied
references are disparate and would not have been combined by an artisan with
ordinary skill without the benefit of hindsight in the manner proposed by the examiner to
thereby obtain a cast extruded plastic film of the type defined by the independent claim
on appeal. For example, the primary references such as Bittscheidt are directed to
molding compositions for making articles such as building materials that are unrelated to
plastic films and the ultimate uses therefor with which the appealed claims and certain of
the secondary references are concerned. Thus, contrary to the examiner's position, an
ordinarily skilled artisan would not have found it obvious in the absence of hindsight to
modify these primary reference molding compositions for making articles such as building
materials in such a manner as to yield the here claimed cast extruded plastic film having
properties desirable for packaging of the type described earlier by combining the primary
reference molding composition teachings with the secondary
reference teachings including, by way of exemplification, the cast extruded film teaching of
Nakane and the blown extruded film teaching of Shih.
In short, the applied prior art contains no teaching or suggestion for combining the
references in the fashion urged by the examiner. From our perspective, therefore,
Appeal No. 1997-1602
Application No. 08/298,088
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it is plain that the rejection under consideration is based upon impermissible hindsight
derived from the appellants' own disclosure rather than upon a teaching, suggestion or
incentive derived from the prior art. In re W. L. Gore & Assoc. v. Garlock, Inc., 721 F.2d
1540, 1553, 220 USPQ 303, 312-13 (Fed. Cir. 1983). As a consequence, we cannot
sustain the examiner's § 103 rejection of the appealed claims as being unpatentable over
Bittscheidt or Takahashi or Golder in view Fukuda and Nakane and Shih and Super and
Swisher.
The decision of the examiner is reversed.
REVERSED

BRADLEY R. GARRIS )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
CHARLES F. WARREN ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
PAUL LIEBERMAN )
Administrative Patent Judge )
Appeal No. 1997-1602
Application No. 08/298,088
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vsh
Appeal No. 1997-1602
Application No. 08/298,088
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Peter G. Pappas
Jones & Askew, LLP
191 Peachtree Street, NE
37th Floor
Atlanta, GA 30303-1769
Appeal No. 1997-1602
Application No. 08/298,088
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APPENDIX
1. A cast extruded plastic film having a layer comprising a blend of about
80 to 92 percent of a polyester, 8 to 20 percent of a copolymer consisting of
ethylene and a comonomer selected from the group consisting of methyl
acrylate, ethyl acrylate, methyl methacrylate and ethyl methacrylate, and
about 1 to 5 percent of a copolymer of ethylene and a comonomer selected
from the group consisting of acrylic acid and methacrylic acid, the layer
having less than 28 percent haze, more than 50 percent gloss, a coefficient
of friction between about 0.1 and 0.8, a heat seal strength, when heat sealed
to itself at a temperature between about 240 and 270 degrees F, of at least
500 grams per inch, and a layer of metal vacuum deposited thereon, the
bond strength between the layer comprising the blend and the metal layer
being at least 300 grams per inch.