Ex Parte Bekele

Patent Trial and Appeal Board

Sep 9, 2013

11084537 (P.T.A.B. Sep. 9, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/084,537 03/17/2005 Solomon Bekele D-43878-01 9413
7590 09/10/2013
Rupert B. Hurley Jr.
Sealed Air Corporation
P.O. Box 464
Duncan, SC 29334
EXAMINER
KASHNIKOW, ERIK
ART UNIT PAPER NUMBER
1782
MAIL DATE DELIVERY MODE
09/10/2013 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte SOLOMON BEKELE

__________

Appeal 2012-006350
Application 11/084,537
Technology Center 1700
____________

Before BRADLEY R. GARRIS, GEORGE C. BEST, and
DONNA M. PRAISS, Administrative Patent Judges.

PRAISS, Administrative Patent Judge.

DECISION ON APPEAL

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Application 11/084,537

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Appellant appeals under 35 U.S.C. § 134 the final rejection of claims
1-3 and 5-28. We have jurisdiction over the appeal pursuant to 35 U.S.C.
§ 6(b).
We AFFIRM.
Appellant’s invention is said to be directed to “a retortable multilayer
packaging film comprising a crosslinked first outer layer which serves as a
seal layer and product-contact layer, and a crosslinked O2-barrier layer.”
Spec. 3. Such packaging films are said to be “suitable for packaging food
products which are to undergo retort while remaining inside the package.”
Id. at 1.
Claim 1 is illustrative:
1. A retortable multilayer packaging film comprising:
(A) a crosslinked first outer layer which serves as a seal layer and
product-contact layer, and
(B) a crosslinked O2-barrier layer consisting essentially of a blend of:
(i) from 50 to 95 weight percent, based on blend weight, of PA-
6,I/6,T; and
(ii) from 5 to 50 percent, based on blend weight, of PA-
MXD,6/MXD,I.
App. Br. 21 (Claims App’x).
The following rejections are on appeal:1
1. Claims 1-3, 5, 16-18, and 20-28 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Dayrit (US 6,599,639 B2
issued Jul. 29, 2003) in view of Brebion (US 6,984,442 B2 issued
Jan. 10, 2006).

1 See Final Office Action (“Final”) mailed September 13, 2010; App. Br. 6.
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2. Claims 6-9 and 11-14 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Dayrit in view of Brebion, and further in
view of Musco (US 6,858,313 B2 issued Feb. 22, 2005).
3. Claims 10 and 15 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Dayrit in view of Brebion, Musco, and further in
view of Blemberg (US 2003/0087057 A1 published May 8, 2003).
4. Claim 19 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Dayrit in view of Brebion, Musco, and further in
view of Bamore (US 2004/0048083 A1 published Mar. 11, 2004).

ISSUE
The dispositive issue on appeal is whether the Examiner erred in
determining that claim 1 is obvious in view of the retortable packaging film
of Dayrit, which has layers that are crosslinked and an interior layer that is a
mixture of an amorphous polyamide and a semicrystalline polyamide, and
Brebion’s polyamides for use in multilayer packaging films as an O2-barrier
layer.

FINDINGS OF FACT
We find that the following enumerated findings are supported by at
least a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d
1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for
proceedings before the Office).
The scope and content of the prior art
1. Dayrit is directed to multilayer retortable package film including an
interior layer that can comprise a mixture of an amorphous polyamide
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and a semicrystalline polyamide such as nylon 6I/6T and PA-MXD6.
Ans. 4-5 (citing col. 5, ll. 24-32). The polyamide mixture can be “in
any suitable proportions of each blend component.” Dayrit, col. 5, ll.
24-32; Ans. 5-6, 11-12. Dayrit teaches that crosslinking of the layers
improves retortability, grease resistance and abuse resistance. Id. (citing
col. 10, ll. 25-35).
2. Brebion is directed to multilayer packaging films. Ans. 7 (citing
Brebion, col. 1, ll. 5-10). Brebion teaches “that it is known in the art
that polyamide MXD6/MXDI is a known variant of polyamide MXD6
when used as a polymer in a package comprising a gas barrier layer
(which also lends gas barrier tendencies to said layer).” Ans. 7 (citing
Brebion, col. 7, ll. 45-63).
Differences between the claimed subject matter and the prior art
3. The claimed subject matter combines crosslinked layers of a retortable
multilayer packaging film where one layer is an O2-barrier layer
consisting essentially of a polyamide blend such as the interior layer of
Dayrit, with the specific polyamide blend of PA-6,I/6,T and PA-
MXD,6/MXD,I, which Brebion suggests is substitutable for the PA-
6,I/6,T and PA-MXD6 polyamide blend of Dayrit, to make a retortable
multilayer packaging film that has gas barrier properties.
The level of skill in the art
4. Neither the Examiner nor Appellant has addressed the level of ordinary
skill in the pertinent art of multilayer retortable packaging films. We
will therefore consider the cited prior art as representative of the level of
ordinary skill in the art. See Okajima v. Bourdeau, 261 F.3d 1350, 1355
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(Fed. Cir. 2001) (“[T]he absence of specific findings on the level of skill
in the art does not give rise to reversible error ‘where the prior art itself
reflects an appropriate level and a need for testimony is not shown’”)
(quoting Litton Indus. Prods., Inc. v. Solid State Sys. Corp., 755 F.2d
158, 163 (Fed. Cir. 1985).
Secondary considerations
5. Appellant has not presented any evidence of secondary considerations
of non-obviousness.

ANALYSIS
Appellant does not separately argue the patentability of claims 1-3 and
5-28 in this appeal (App. Br. 18-19). Accordingly, claims 2-3 and 5-28
stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(vii).
The Examiner finds that while Dayrit discloses a layer that is a blend
of polyamides such as 6I/6T and PA-MXD6, Dayrit is silent with regard to
the polymer concentrations (Ans. 5) and the use of PA-MXD6/MXDI
specifically (id. at 7). The Examiner also finds that Dayrit is silent regarding
the crosslinking of specific layers, but teaches that crosslinking improves
retortability, grease resistance and abuse resistance. Id. at 4-5. Further, the
Examiner appears to provide “‘some articulated reasoning with some
rational underpinning to support the legal conclusion of obviousness.’” KSR
Int’l v. Teleflex, Inc., 550 U.S. 398, 418 (2007) (quoting In re Kahn, 441
F.3d 977, 988 (Fed. Cir. 2006)). Namely, according to the Examiner, it
would have been obvious to a person of ordinary skill in the art at the time
of the invention to adjust the proportion of polyamides in the blend “in order
to achieve ‘a retortable, grease and abuse resistant film’.” Ans. 5. The
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Examiner also reasons that one of ordinary skill in the art at the time of the
invention would have been motivated to modify the invention of Dayrit with
Brebion because Brebion teaches MXD6/MXDI is a known variant of
polyamide MXD6 (id. at 7) and Brebion offers “a high degree of
dimensional stability as well as a low oxygen transmission rate (id. at 8
(citing Brebion, col. 1, ll. 5-10)).” Accordingly, the Examiner appears to
have set forth a prima facie case of obviousness.
Appellant does not dispute the Examiner’s characterization of the
scope and content of the prior art. Appellant challenges the reasoning
underlying the prima facie case of obviousness, arguing that (1) the
Examiner failed to provide a reason for selecting the recited blend and
concentration of polyamides, (2) such a modification of Dayrit would not
result in the claimed film, and (3) such a modification would change the
principle of operation of Dayrit, which includes a separate layer of
ethylenevinyl alcohol copolymer (EVOH) as an O2-barrier layer. App. Br.
7-9, 13-14.
The difficulty with Appellant’s argument is that all of the elements of
the claimed composition are disclosed in the references. As the Examiner
found, and Appellant does not dispute, Dayrit discloses a blended
composition of polyamides for interior layers separate from the EVOH O2-
barrier layer. A separate EVOH layer is not precluded by claim 1, therefore
the principle of operation of Dayrit is not changed by the modification. Ans.
11-12.
Based on the level of skill in the art evidenced by the references, the
Examiner reasonably finds that the selection and concentration of
polyamides for the blend taught by Dayrit would have been “well within the
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ability of one of ordinary skill in the art at the time of the invention to adjust
. . . as Dayrit et al. give no recitation of a range one of ordinary skill in the
art would be motivated to experiment on their own, including through the
instantly claimed ranges, to obtain polymers suitable for their intended
purpose.” Id. at 12. See KSR, 550 U.S. at 421 (“A person of ordinary skill is
also a person of ordinary creativity, not an automaton.”) “[W]hen a patent
claims a structure already known in the prior art that is altered by the mere
substitution of one element for another known in the field, the combination
must do more than yield a predictable result.” Id. at 416 (citing United
States v. Adams, 383 U.S. 39, 40 (1966)). The operative question with
regard to the substitution of the polyamide of Brebion for the MXDI
polyamide of Dayrit in the blend taught by Dayrit is “whether the
improvement is more than the predictable use of prior art elements according
to their established functions.” Id. In our view, substituting the
MXD6/MXDI polyamide of Brebion for the MXDI polyamide of Dayrit in
the polyamide blend interior layers of Dayrit would yield, predictably, the
multilayer packaging film with gas-barrier properties. Appellant has not
directed us to any factually supported objective evidence of unexpected
results. FF5. Absent such evidence, we are not persuaded as to error in the
prima facie case of obviousness. Cf. KSR, 550 U.S. at 418.

For the foregoing reasons, we sustain the rejections of claims 1-3 and
5-28 under 35 U.S.C. §103(a).
DECISION
The Examiner’s decision is affirmed.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.

ORDER
AFFIRMED
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