Ex Parte Speer et al

Board of Patent Appeals and Interferences

Feb 27, 2006

09860388 (B.P.A.I. Feb. 27, 2006)

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The opinion in support of the decision being entered
today was not written for publication in a law journal
and is not binding precedent of the Board.
UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES

Ex parte DREW V. SPEER and THOMAS D. KENNEDY

Appeal No. 2006-0589
Application No. 09/860,388

ON BRIEF

Before KIMLIN, WARREN and TIMM, Administrative Patent Judges.
KIMLIN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of claims 22-32.
Claims 22 and 27 are illustrative:
22. A multilayer film having a first outer surface, and a second
outer surface, the multilayer film comprising a layer comprising
an oxygen scavenger;
wherein the first outer surface comprises
iii) a printed image, and
iv) a radiation-curable varnish covering at least a
portion of the printed image.
27. A multilayer film having a first outer surface, and a second
outer surface, the multilayer film comprising a layer comprising
Appeal No. 2006-0589
Application No. 09/860,388
We note that appellants do not separately argue the § 1021
and § 103 rejections.
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an oxygen scavenger; wherein the first outer surface comprises a
radiation-curable printed image.
The examiner relies upon the following references in the
rejections of the appealed claims:
Arney et al. (Arney) 4,482,624 Nov. 13, 1984
Speer et al. (Speer) 5,350,622 Sep. 27, 1994
Independent claim 22 on appeal is directed to a multilayer
film comprising a first outer surface having a printed image and
a radiation-curable varnish covering at least a portion of the
image. Independent claim 27 is drawn to a multilayer film having
a first outer surface comprising a radiation-curable printed
image and a layer comprising an oxygen scavenger, with no mention
of a varnish covering the printed image.
Appealed claims 22, 24-27 and 29-32 stand rejected under
35 U.S.C. § 102(b) as being anticipated by Arney. Claims 23 and
28 stand rejected under 35 U.S.C. § 103(a) as being unpatentable
over Arney in view of Speer.
We consider first the examiner's rejections of claims 22-26,
31 and 32. These claims all require a radiation-curable varnish1
covering at least a portion of the printed image on the outer
surface of the multilayer film. According to the examiner,
Appeal No. 2006-0589
Application No. 09/860,388
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"[a]lthough the image formed prior to radiation curing [in Arney]
is latent, it is still recognized and interpreted as an image"
(page 5 of Answer, first paragraph). However, we do not find
that a reasonable interpretation of the claimed "printed image"
includes a latent image that is not visible to the human eye.
Accordingly, we concur with appellants that Arney alone, or with
Speer, renders the presently claimed radiation-curable varnish
covering a printed image unpatentable under § 102 or § 103.
Hence, we will not sustain the examiner's rejections of claims
22-26, 31 and 32.
The examiner's rejections of claims 27-30 are another matter.
As explained above, claims 27-30 do not require a radiation-
curable varnish covering a printed image. Since this recitation
in claim 22 is the sole basis for appellants' traversal of the
examiner's rejections, it follows that appellants have not
rebutted the examiner's rejections under § 102 of claims 27, 29
and 30, and § 103 rejection of claim 28. We note that appellants'
Brief presents no argument with respect to independent claim 27,
but is focused only on claim 22. Accordingly, we will sustain the
examiner's rejections of claims 27-30.
In conclusion, based on the foregoing, the examiner's
rejections of claims 27-30 are sustained and the examiner's
rejections of claims 22-26, 31 and 32 are reversed.
Appeal No. 2006-0589
Application No. 09/860,388
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Consequently, the examiner's decision rejecting the appealed
claims is affirmed-in-part.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a)(1)(iv) (effective Sep. 13, 2004; 69 Fed. Reg. 49960
(Aug. 12, 2004); 1286 Off. Gaz. Pat. Office 21 (Sep. 7, 2004)).
AFFIRMED-IN-PART
EDWARD C. KIMLIN )
Administrative Patent Judge )
)
)
)
)
CHARLES F. WARREN ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
)
CATHERINE TIMM )
Administrative Patent Judge )
ECK:clm
Appeal No. 2006-0589
Application No. 09/860,388
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Cryovac, Inc.
P.O. Box 464
Duncan, SC 29334