Garth Bielke et al.

Patent Trials and Appeals Board

Sep 26, 2019

14057800 - (D) (P.T.A.B. Sep. 26, 2019)

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.
14/057,800 10/18/2013 Garth Bielke IGP 2076.US 4139
321 7590 09/26/2019
STINSON LLP
7700 FORSYTH BOULEVARD, SUITE 1100
ST LOUIS, MO 63105
EXAMINER
ATTEL, NINA KAY
ART UNIT PAPER NUMBER
3734
NOTIFICATION DATE DELIVERY MODE
09/26/2019 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
stl.uspatents@stinson.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GARTH BIELKE and ALAN JEFFREY MOSLEY
Appeal 2019-000834
Application 14/057,800
Technology Center 3700
Before JENNIFER D. BAHR, MICHAEL L. HOELTER, and
JAMES P. CALVE, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision rejecting claims 1–10, 12, 14, and 16. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as
Minigrip LLC. Appeal Br. 3.
Appeal 2019-000834
Application 14/057,800

2
CLAIMED SUBJECT MATTER
Appellant’s invention is directed to “freezer bags with landing rails to
reduce the contact of the bag walls to other surfaces, particularly while
frozen.” Spec. ¶ 1. Claim 1, reproduced below, is the only independent
claim and is illustrative of the claimed subject matter.
1. A reclosable bag, including:
front and rear walls;
wherein portions of edges of the front and rear walls are
joined together thereby forming a storage volume and a mouth;
a first zipper with a first zipper profile attached to an
interior of the front wall and a second zipper profile attached to
an interior of the rear wall, wherein the first and second zipper
profiles can interlock thereby closing the mouth of the bag;
an upper section landing rail on an exterior upper section
of both the front wall and the rear wall of the bag;
a mid-section landing rail on a mid-section of the exterior
wall of the bag;
a lower section landing rail on an exterior lower section
of both the front wall and the rear wall of the bag;
wherein the landing rails extend horizontally across the
bag continuously from one edge to the other edge parallel to the
mouth of the bag; and
wherein the landing rails are rails to separate at least a
portion of the front and rear walls from adjacent frozen
surfaces.
Appeal 2019-000834
Application 14/057,800

3
REFERENCES
The prior art relied upon by the Examiner is:
Wolters US 1,739,625 Dec. 17, 1929
De Laney
Segati
Berich
US 2,136,043
US 5,174,458
US 6,877,898 B2
Nov. 8, 1938
Dec. 29, 1992
Apr. 12, 2005
Cheung
Taheri
Smith
US 2006/0165316 A1
US 2008/0285897 A1
US 2011/0311169 A1
July 27, 2006
Nov. 20, 2008
Dec. 22, 2011
REJECTIONS
I. Claims 1, 8, 9, and 12 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Taheri in view of Wolters or De Laney or Segati.
Final Act. 2.
II. Claims 14 and 16 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Taheri in view of Wolters or De Laney or Segati, as
applied to claim 1, and further in view of Berich. Final Act. 6.
III. Claims 1–3 and 8–10 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Berich in view of Taheri, and Wolters or De Laney or
Segati. Final Act. 10.
IV. Claims 4 and 5 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Berich in view of Taheri, and Wolters or De Laney or
Segati, as applied to claim 3, and further in view of Smith. Final Act. 14.
V. Claims 6 and 7 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Berich in view of Taheri, and Wolters or De Laney or
Segati, as applied to claim 1, and further in view of Cheung. Final Act.
16.

Appeal 2019-000834
Application 14/057,800

4
OPINION
Rejections I and III
In contesting these rejections, Appellant argues all of the claims
together. See Appeal Br. 6–21. Thus, we decide the appeal of Rejections I
and III on the basis of independent claim 1, and the dependent claims subject
to these rejections stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv)
(permitting the Board to select a single claim to decide the appeal as to a
single ground of rejection of a group of claims argued together).
The Examiner’s rejections rely on a combination of Wolters, De
Laney, or Segati with either Taheri alone or with both Berich and Taheri.
Final Act. 2, 10. However, because we determine that the Examiner
provides sufficient reasoning to establish that either Taheri alone, or a
combination of Berich and Taheri, renders obvious the subject matter of
claim 1, we need not consider the additional teachings of Wolters, De Laney,
or Segati, or Appellant’s arguments with respect to these references. In
affirming a multiple reference rejection under 35 U.S.C. § 103, the Board
may rely on fewer than all of the references relied on by the Examiner in an
obviousness rationale without designating it as a new ground of rejection. In
re Bush, 296 F.2d 491, 496 (CCPA 1961).
The Examiner determines, and Appellant does not dispute, that
Taheri, or a combination of Berich and Taheri, discloses or renders obvious
a reclosable bag as recited in claim 1, including, in pertinent part, an upper
section landing rail and a lower section landing rail, but that “Taheri fails to
specifically teach providing a mid-section landing rail on a mid-section of
the exterior wall of the bag.” Final Act. 3–4, 10–11. However, the
Examiner finds:
Appeal 2019-000834
Application 14/057,800

5
Taheri discloses an extrusion process for producing a
plastic bag having a zipper closure. Taheri states that molten
material is extruded through an annular opening of a die
assembly to produce a tubular film, where the annular opening
of the die assembly typically includes profile openings to
provide the interlocking profiles of the zipper closure.
However, because these profile openings make the annular
opening asymmetrical, the molten material moves more easily
through the regions of the annular opening near the profile
openings to the detriment of the regions of the [annular]
opening that are distanced from the profile openings.
Accordingly, the regions of the annual opening that are
distanced from the profile openings can have a thickness that is
unintentionally thinned and that can easily break or crack,
particularly under extreme temperature conditions (paragraphs
4, 6, 56, 57).
As a result, Taheri discloses including ribs (40) in the
region of the bag that forms the bottom end to reinforce this
region without compromising the foldability or flexibility of
this region, such that the bag is made more resistant to stress
cracking caused, for example, by the mechanical stress
imparted in the process of extruding the film or in freezing the
contents of the bag in later use (paragraph 30).
Ans. 3–4. The Examiner then reasons that:
Taheri focuses on the region of the bag where the impact
due to extrusion process is greatest, i.e., the bottom end of the
bag. However, all of the regions of the annular opening that are
distanced from the profile openings, including the regions of
the annular opening through which the tubular film that forms
the upper section of the bag and the mid-section of the bag, are
impacted. Accordingly, there exists sufficient teaching,
suggestion, and motivation within Taheri itself to have
employed ribs at any section of the bag that has a thickness that
is unintentionally thinned and/or that is susceptible to cracking
or breaking.
Id. at 4.
Appeal 2019-000834
Application 14/057,800

6
In response, Appellant argues that “[n]owhere does Taheri indicate
that the mid-section of the bag is unintentionally thinned or susceptible to
cracking, which is why Taheri does not place ribs at the mid-section.” Reply
Br. 1.2
Appellant’s argument is not persuasive because it appears to insist on
an explicit teaching, suggestion, or motivation in the cited art to establish
obviousness; however, such a requirement has been foreclosed by the
Supreme Court. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 415, 419
(2007) (stating that a rigid insistence on teaching, suggestion, or motivation
is incompatible with its precedent concerning obviousness). The Court
noted that an obviousness analysis “need not seek out precise teachings
directed to the specific subject matter of the challenged claim, for [an
examiner] can take account of the inferences and creative steps that a person
of ordinary skill in the art would employ.” Id. at 418. Instead, the relevant
inquiry is whether the Examiner has set forth “some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006), cited with
approval in KSR, 550 U.S. at 418.
Taheri does not expressly teach that the mid-section of the bag is
unintentionally thinned. See Taheri ¶ 4 (expressly mentioning that “the
bottom end of the bag can have a thickness that is unintentionally thinned
and that can easily break or crack”). Taheri does teach, however, that the
presence of the profile opening in the annular opening favors flow of

2 Page numbers appear at the bottom of the pages of the Reply Brief, starting
with the second page numbered “1.” We use this pagination appearing at the
bottom of the pages in referring to pages of the Reply Brief herein.
Appeal 2019-000834
Application 14/057,800

7
material “through the regions of the annular opening near the profile
openings to the detriment of the regions of the annular opening that are
distanced from the profile openings.” Taheri ¶ 4. Taheri recognizes that this
impact is greatest at the region that forms the bottom of the bag and is most
concerned about reinforcing this region, especially because simply
increasing the thickness of the film in this region can be problematic.
However, persons of ordinary skill in the art would readily appreciate from
Taheri’s disclosure about movement of material through the annular opening
that unintentional thinning could also take place at other regions that are
distanced, albeit perhaps less distanced, from the zipper profiles. As the
Examiner points out, this would include the mid-section of the bag. See
Ans. 4.
Taheri teaches that the rib profile openings widen an otherwise
narrower portion of the annular opening to better balance the flow of molten
material through the annular opening. Taheri ¶ 57. Moreover, Taheri
teaches that, in the illustrated embodiment, the rib profile openings increase
in density at distances that are further from the closure profile openings, but
emphasizes that “the profile openings can be alternatively arranged and
profile openings can be omitted or added.” Id. Thus, Taheri’s teachings are
not limited to the particular arrangement of ribs 40 illustrated by Taheri. We
also note that Appellant’s Specification discloses that “[l]anding rail 52 is
formed at a somewhat lower portion of the mid-section of front wall 10,”
which would be significantly distanced from the zipper profiles. Spec. ¶ 14.
Taheri’s teaching regarding an increasing density of ribs with increased
distance from the zipper profiles supports the Examiner’s determination that
Appeal 2019-000834
Application 14/057,800

8
Taheri provides ample suggestion or motivation to provide a rib (landing
rail) at such a location, which is distanced from the zipper profiles.
For the above reasons, the Examiner’s articulated reason for
modifying Taheri’s bag (or the bag of Berich as modified by Taheri) to
provide one or more additional ribs (i.e., landing rails) on a mid-section of
the exterior wall of the bag, as recited in claim 1, has rational underpinnings.
Thus, we sustain the rejection of claim 1, as well as claims 8, 9, and 12,
which fall with claim 1, as unpatentable over Taheri in view of Wolters or
De Laney or Segati, on the basis of the teachings of Taheri itself. We also
sustain the rejection of claim 1, as well as claims 2, 3, and 8–10, which fall
with claim 1, as unpatentable over Berich in view of Taheri, and Wolters or
De Laney or Segati, on the basis of the teachings of Berich and Taheri. See
In re Bush, 296 F.2d at 496 (permitting the Board to rely on fewer than all of
the references relied on by the Examiner in an obviousness rationale without
designating it as a new ground of rejection).
Rejections II, IV, and V
Appellant does not present any additional arguments contesting these
rejections. See Appeal Br. 6–21; Reply Br. passim. Thus, for the reasons
discussed above, we sustain the rejection of claims 14 and 16 as
unpatentable over Taheri in view of Wolters or De Laney or Segati, and
further in view of Berich; the rejection of claims 4 and 5 as unpatentable
over Berich in view of Taheri, and Wolters or De Laney or Segati, and
further in view of Smith; and the rejection of claims 6 and 7 as unpatentable
over Berich in view of Taheri, and Wolters or De Laney or Segati, and
further in view of Cheung.

Appeal 2019-000834
Application 14/057,800

9
DECISION
The Examiner’s decision rejecting claims 1–10, 12, 14, and 16 under
35 U.S.C. § 103(a) is AFFIRMED.
CONCLUSION
In summary:
Claims
Rejected
Basis Affirmed Reversed
1, 8, 9, 12 § 103 Taheri,
Wolters or
De Laney or
Segati
1, 8, 9, 12
14, 16 § 103 Taheri,
Wolters or
De Laney or
Segati, Berich
14, 16
1–3, 8–10 § 103 Berich,
Taheri, Wolters
or De Laney or
Segati
1–3, 8–10
4, 5 § 103 Berich,
Taheri, Wolters
or De Laney or
Segati, Smith
4, 5
6, 7 § 103 Berich,
Taheri, Wolters
or De Laney or
Segati, Cheung
6, 7
Overall
Outcome
1–10, 12,
14, 16

Appeal 2019-000834
Application 14/057,800

10
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED