Graphic Packaging International, Inc.

Patent Trials and Appeals Board

Dec 22, 2020

2020003109 (P.T.A.B. Dec. 22, 2020)

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.
15/053,151 02/25/2016 William Gilpatrick R029 18170US.1 4427
26158 7590 12/22/2020
WOMBLE BOND DICKINSON (US) LLP
ATTN: IP DOCKETING
P.O. BOX 7037
ATLANTA, GA 30357-0037
EXAMINER
STEVENS, ALLAN D
ART UNIT PAPER NUMBER
3736
NOTIFICATION DATE DELIVERY MODE
12/22/2020 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):
BostonDocket@wbd-us.com
IPDocketing@wbd-us.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WILLIAM GILPATRICK and JEFFREY T. SLOAT
Appeal 2020-003109
Application 15/053,151
Technology Center 3700
Before MICHAEL L. WOODS, NATHAN A. ENGELS, and
LEE L. STEPINA, Administrative Patent Judges.
STEPINA, 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 to reject claims 1–7, 9–17, 43, and 44. 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. Appellant identifies Graphic Packaging International, Inc., as
the real party in interest. Appeal Br. 1.
Appeal 2020-003109
Application 15/053,151

2
CLAIMED SUBJECT MATTER
The claims are directed to a container including pleats, a flange, and a
coating covering part of the flange. Spec. ¶ 4.
Claim 1, reproduced below with emphasis added, is illustrative of the
claimed subject matter.
1. A container for holding an article, the container
comprising:
a wall and a flange extending from the wall, the wall at
least partially defining a cavity of the container, and the flange
extending from an upper end of the wall to an outer edge of the
container;
at least one pleat extending in at least the flange, the at
least one pleat comprises at least a first portion of material and a
second portion of material, the first portion of material and the
second portion of material are at least partially overlapped to
form the at least one pleat; and
a coating on at least a portion of the flange and extending
on a top surface of the flange along the upper end of the wall, the
coating having a thickness of 1 to 2 mils, the coating at least
partially covering the at least one pleat and forming a continuous
sealing surface on the flange, the coating is on the first portion of
material and the second portion of material when the first portion
of material and the second portion of material are at least
partially overlapped, and the coating is spaced from the outer
edge of the container.
Appeal Br. 22 (Claims App.).
REFERENCES
The prior art relied upon by the Examiner is:
Appeal 2020-003109
Application 15/053,151

3
Name Reference Date
Lentjes US 4,473,165 Sept. 25, 1984
Finchum US 5,335,787 Aug. 9, 1994
Middleton US 2004/0262322 A1 Dec. 30, 2004
Dircks US 2005/0273064 A1 Dec. 8, 2005

EVIDENCE
The evidence relied upon by Appellant is:
Declaration of William Gilpatrick, filed November 27, 2018,
(hereinafter the “Gilpatrick Declaration” or “Declaration”).

REJECTIONS
I. Claims 1–7, 9–15, 17, 43, and 44 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Middleton, Lentjes, and Dircks.
II. Claim 16 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Middleton, Lentjes, Dircks, and Finchum.

OPINION
Rejection I (Middleton, Lentjes, and Dircks)
Claims 1–7, 9–15, 17, 43, and 44
Appellant argues for the patentability of the claims subject to the first
ground of rejection, i.e., claims 1–7, 9–15, 17, 43, and 44, as a group.2

2 Appellant states, “Middleton, Lenties, and Dircks, either individually or in
combination, further fail to teach or suggest each and every element of
dependent claim 44,” but, aside from the arguments made in support of
claim 1, does not provide any substantive explanation as to how claim 44
patentably distinguishes over the Examiner’s proposed combination of these
references. Appeal Br. 8.
Appeal 2020-003109
Application 15/053,151

4
Appeal Br. 8–24. We select claim 1 as representative of the group, and
claims 2–7, 9–15, 17, 43, and 44 stand or fall with claim 1. 37 C.F.R.
§ 41.37(c)(1)(iv).
Appellant refers to Figure 2 as providing support for certain portions
of claim 1. Appeal Br. 2. We reproduce Appellant’s Figure 2 below.

Appellant’s Figure 2 is a perspective view of container 5, including
coating 131 disposed on flange 7. Spec. ¶¶ 10, 24.
The Examiner finds that Middleton discloses all of the elements
recited in claim 1, except (i) that its coating is not spaced from an outer edge
of the container, and (ii) the thickness of its coating is not 1 to 2 mils. Non-
Appeal 2020-003109
Application 15/053,151

5
Final Act. 3 (citing Middleton ¶¶ 131, 139, Figs. 1A, 1B). The Examiner
relies on Lentjes to teach “a receptacle 3 with a rim 2 with an adhesive foil
10 provided on an upper surface of the rim 2 and a lid 13 which is pressed
on to the adhesive foil 10 to seal the receptacle, wherein the adhesive foil 10
is spaced from an outer edge of the rim 2.” Id. at 3–4 (citing Lentjes, Fig.
1). The Examiner reasons that it would have been obvious to a person of
ordinary skill in the art to modify the coating disclosed by Middleton “to be
spaced from the outer edge of flange 120, like Lentjes, in order to reduce
materials and associated costs.” Id. at 4.
The Examiner relies on Dircks to teach an adhesive layer (adhesive
layer 18) that is approximately 1 mil in thickness. Id. (citing Dircks ¶ 29).
As reasoning for modifying Middleton’s coating to have the recited 1–2 mil
thickness, the Examiner states, “[i]t would have been obvious to one having
ordinary skill in the art before the effective filing date of the invention to
have made the thickness of the coating be 1 mil in order to reduce materials
and associated costs[,] and since it has been held that discovering an
optimum value of a result effective variable involves only routine skill in the
art.” Id. Thus, the Examiner again finds that the proposed modification
would reduce materials and costs.
Appellant first argues “Middleton discloses a flange 116 that is
encapsulated with plastic by injection molding[, and a]n injection-molded
plastic encapsulating a flange is completely different from a coating with a
thickness of 1 to 2 mils.” Appeal Br. 9 (citing Decl. ¶ 5).
Appellant’s argument does not identify Examiner error inasmuch as
the Examiner does not find that Middleton discloses a coating of 1 to 2 mils,
but, rather, determines that in light of the teachings of the cited references, it
Appeal 2020-003109
Application 15/053,151

6
would have been obvious to modify Middleton’s coating to have a thickness
falling within the recited range. See Non-Final Act. 3–4. Appellant’s
assertion that Middleton’s encapsulation is “completely different from a
coating” (Appeal Br. 9) does not address the Examiner’s findings of fact or
reasoning for making the proposed modification. Paragraph 5 of the
Gilpatrick Declaration merely restates Appellant’s argument on this point,
and, therefore, does not buttress Appellant’s position.
Appellant next argues, “the adhesive foil 10 [of Lentjes] is not a
coating that covers a pleat to form a continuous sealing surface on the
reinforcing rim 2,” and “[t]he adhesive foil 10 of Lentjes merely adheres the
lid 13 to an already ideal connection surface of the rim 2.” Id. at 9
(emphasis omitted). Further, Appellant states, “Lentjes is completely
unrelated to forming a smooth exterior on a pleated flange with a coating.”
Id. (emphasis omitted).
Like Appellant’s argument above regarding Middleton, this argument
does not address the Examiner’s findings of fact or reasoning relating to the
proposed modification to Middleton’s coating. The Examiner relies on the
teachings of Lentjes only for positioning Middleton’s coating in a location
“spaced from the outer edge of the container.” See Non-Final Act. 3–4.
Next, Appellant asserts, “one skilled in the art would not look to the
adhesive foil 10 of Lentjes to modify the plastic of the encapsulated rim 124
of Middleton, which discloses that the encapsulating material has a smooth
exterior on the pleated flange so that the rim may be sealed with a film.”
Appeal Br. 9 (citing Middleton ¶¶ 12–13; Gilpatrick Declaration 6); see also
id. at 10 (“the injection-molded plastic of Middleton forms the encapsulated
rim 124 with relatively uniform thickness and strength on a surface of
Appeal 2020-003109
Application 15/053,151

7
irregularities so that a lid can be hermetically sealed to the encapsulated rim
124.”).
This argument is merely conclusory and does not contest the
Examiner’s findings of fact regarding Lentjes’s disclosure of an adhesive
foil spaced from an outer edge of a rim. See Non-Final Act. 3–4. Nor does
this argument contest the Examiner’s reasoning regarding the proposed
implementation of the teachings of Lentjes, namely, that a person of
ordinary skill in the art would have been motivated to space the coating of
Middleton from the rim in order to reduce materials and associated cost. See
id. at 4.
Furthermore, we do not agree with Appellant’s assertion that a person
of ordinary skill in the art “would not look to” the teachings of Lentjes as
proposed by the Examiner. To the extent Appellant contends that Middleton
and Lentjes are too different from each other for the Examiner’s proposed
combination to be reasonable, Appellant’s characterization of Middleton’s
coating as “encapsulating material has a smooth exterior on the pleated
flange so that the rim may be sealed with a film” (Appeal Br. 9) omits
Middleton’s additional description of its coating as a bonding material,
which is how Lentjes identifies foil 10. Middleton ¶ 132 (“The encapsulated
rim 124 generally bonds well with a thin film, paper, fiberboard, or a
composite material overlaying the tray.”); Lentjes 3:59–61 (“An adhesive
foil 10 is provided on the upper surface of the reinforcing rim 2.”). Thus,
both Middleton and Lentjes disclose similar containers with bonding
materials disposed on flanges around their peripheries. See Middleton, Figs.
1A–1B; Lentjes, Figs. 1–2. That Middleton also discloses that its coating
may provide other benefits, such as, in some instances, a smooth exterior or
Appeal 2020-003109
Application 15/053,151

8
increased strength, does not negate this similarity between Middleton and
Lentjes. Consequently, the statement in paragraph 6 of the Gilpatrick
Declaration that “[t]he adhesive foil of Lentjes is completely different from
the plastic of the encapsulated rim of Middleton in both function and form”
and Appellant’s corresponding argument on pages 9–10 of the Appeal Brief,
are contradicted by the express disclosures in Middleton and Lentjes.
Further, to the extent Appellant’s argument that a person of ordinary
skill in the art “would not look to” the teachings of Lentjes is an assertion
that Lentjes is non-analogous art, we disagree because Lentjes (like
Middleton) is in Appellant’s field of endeavor, namely, flanged containers.3
Appellant next argues, “Dircks’s ostomy pouch 12 does not include
any pleats and the adhesive layer 18 does not form a sealing surface that
covers a pleat in a flange. Accordingly, one skilled in the art would not look
to the adhesive layer 18 of Dircks to modify the plastic of the encapsulated
rim 124 of Middleton.” Appeal Br. 10 (citing Decl. ¶ 7). Paragraph 7 of the
Gilpatrick Declaration states, “[t]he adhesive layer of Dircks is completely
unrelated to forming a smooth exterior of a pleated flange of a container and
one skilled in the design of lidded containers would not look to Dirks to
modify Middleton.”
Appellant’s argument does not apprise us of Examiner error. There is
no dispute as to whether Dircks discloses an adhesive layer of 1 mil in
thickness, which is all the Examiner relies on Dircks to teach. See Non-
Final Act. 4; Dircks ¶ 29. Appellant does not contest that the Examiner’s

3 Appellant states, in the Reply Brief, “the Examiner asserts that Appellant
argued that Lentjes is non[-]analogous art. However, this is not an accurate
representation of Appellant’s arguments in the Appeal Brief.” Reply Br. 5.
Appeal 2020-003109
Application 15/053,151

9
proposed modification would “reduce materials and associated costs.” See
Non-Final Act. 4. As for the doctrine of routine optimization, the
Examiner’s second rationale for modifying Middleton’s film to have the
recited 1–2 mil thickness (id.), Middleton’s teaching that “reducing the
amount of polymer by encapsulating only a portion of the flange reduces the
manufacturing costs and time” supports this reasoning. Middleton ¶ 139.
Further, Dircks is reasonably pertinent to the problem addressed by the
inventor, applying a coating to a pleat and flange.4
Relying on paragraph 8 of the Gilpatrick Declaration as evidence,
Appellant next asserts that “making an injection molded encapsulated rim
that is 1 mil thick would be technically very difficult and because an
encapsulated rim that is less than 125 mils thick would be expected to have
inconsistencies in the material that can result in poor material strength.”
Appeal Br. 11. In this regard, the Gilpatrick Declaration states, “[i]t is my
expert opinion that one skilled in the design of lidded containers would
consider the formation of an encapsulated rim by injection molding
according to Middleton at 1 mil thick to be technically very difficult.” Decl.
¶ 8. The Declaration further states, “one skilled in the design of lidded
containers would expect that an encapsulated rim having a smaller thickness
would result in inconsistencies in the material that can result in poor material
strength, for example.” Id.
First, as the Examiner points out (see Ans. 15), paragraph 8 of the
Gilpatrick Declaration does not provide any technical explanation as to why

4 Appellant states, in the Reply Brief, “the Examiner asserts that Appellant
argued that Dircks is nonanalogous art. However, this is not an accurate
representation of Appellant’s arguments in the Appeal Brief.” Reply Br. 6.
Appeal 2020-003109
Application 15/053,151

10
forming a coating of 1–2 mils in thickness would be “technically very
difficult,” and, rather, is merely opinion.5 In any event, Appellant does not
assert that providing such a film would have been beyond the level of skill in
the art. Indeed, Dircks explicitly discloses providing adhesive film 18
having a thickness of approximately 1 mil. See Dircks ¶ 29. Appellant
provides no explanation as to why a similar film would not be applicable to
the flange disclosed by Middleton.
Further, Middleton discloses reducing the amount of polymer used for
encapsulation in order to reduce manufacturing cost and time. See
Middleton ¶ 139. Middleton also discloses that some “embodiments may
vary the width or thickness of the encapsulated rim 124, as necessary, and
may employ an encapsulated rim of non-uniform thickness or width.” Id. ¶
131. Additionally, Middleton states, “[i]n some instances, ease or cost of
manufacturing considerations may require a tray having hermetic sealing
capabilities, but not appreciably enhanced strength.” Id. ¶ 161. Thus,
Middleton discloses or suggests (i) altering the thickness and width of its
coating as necessary, and (ii) that the coating, in some instances, need not
contribute to the strength of the container. In light of the above, Appellant’s
argument regarding the technical difficulty of modifying Middleton’s
coating to have a thickness of 1–2 mils is unavailing.
Appellant next argues, “[w]ith respect to the assertions on page 14 of
the Office Action regarding discovering an optimum value of a result
effective variable, citing In re Boesch, 617 F.2d 272 . . . (CCPA 1980),
Appellant respectfully disagrees that the thickness of an injection molded

5 Claim 1 does not require the coating to be formed by injection-molding.
Appeal 2020-003109
Application 15/053,151

11
material or a coating is a result effective variable.” Appeal Br. 12.
Appellant then quotes certain portions of MPEP § 2144, asserts that the facts
of Boesch are not close enough to those of the present case to support the
rejection of claim 1, and concludes “[f]or at least these reasons, Appellant
respectfully submits that one skilled in the art would not modify the
injection-molded plastic of the encapsulated rim of Middleton to be 1 mil
thick.” Id. at 12–13.
Appellant’s contentions include no explanation as to why the
thickness of the coating disclosed by Middleton would not be recognized as
a result-effective variable and why providing a thickness of between 1–2
mils would not have been a matter of routine optimization. Rather,
Appellant’s argument is merely conclusory. Moreover, Middleton’s
disclosure that “adding only a small portion of injection-molded material to
the upper or lower surface of a tray flange may substantially reduce the cost
and the difficulty of manufacturing the tray” (Middleton ¶ 161) suggests
reducing the thickness of the coating to the minimum amount of material
needed to achieve a sufficient seal.
Appellant next argues, “Lentjes teaches away from combination with
the disclosure of Middleton so that one skilled in the art would not modify
Middleton in view of Lentjes.” Appeal Br. 13. Appellant goes on to assert
Lentjes teaches away from (i) injection molding, (ii) cardboard cylinders,
(iii) paper-based products, and (iv) the use of a core mold to for a receptacle.
Id. at 13–14. The Gilpatrick Declaration makes similar assertions. Decl. ¶
9.
Appellant’s argument on this point does not identify Examiner error
because the processes/components from which Lentjes allegedly teaches
Appeal 2020-003109
Application 15/053,151

12
away are not related to the Examiner’s proposed modification to Middleton.
In this regard, the Examiner finds Middleton discloses nearly all the
elements recited in claim 1 and relies on Lentjes only to teach the “spaced
from” limitation. See Non-Final Act. 3–4. Appellant does not allege that
Lentjes teaches away from providing a coating spaced from an outer edge.
See Appeal Br. 13–14. The Examiner relies on Dircks as support for
modifying the coating of Middleton to be 1–2 mils thick. Non-Final Act. 4.
Appellant does not allege that Lentjes teaches away from this modification
either. See Appeal Br. 13–14. The fact that the Gilpatrick Declaration
essentially reiterates Appellant’s argument that Lentjes teaches away (see
Decl. ¶ 9) does not remedy Appellant’s focus on elements that do not
address the Examiner’s rejection of claim 1.
Appellant next contends that “[t]he Declaration under 37 C.F.R.
§ 1.132 by William Gilpatrick provides evidence that should be weighed
against the Examiner’s proposed modifications of the cited references and
the Examiner’s interpretation of the cited references.” Appeal Br. 15
(emphasis omitted). Appellant states, “[t]he Examiner has not been
established in the record as an expert on the views of one skilled in the art of
lidded containers and the Examiner’s conclusory statements on pages 8–12
of the Office Action do not supersede the evidence provided by the
Declaration of Gilpatrick.” Id. Appellant goes on to reiterate portions of the
arguments discussed above, asserting that the Declaration evidence
outweighs the “opinions” of the Examiner. Id. 15–18.
We have weighed Appellant’s Declaration evidence against the
evidence in Middleton, Lentjes, and Dircks cited by the Examiner and find
the Examiner has the better position. The Declarant’s substantive statements
Appeal 2020-003109
Application 15/053,151

13
are made in paragraphs 5–9 of the Gilpatrick Declaration, and we addressed
each of these above as it relates to Appellant’s Appeal Brief. For the reasons
discussed above, Appellant’s contentions do not apprise us of Examiner
error.
In the final pages of the Appeal Brief, Appellant contends that the
Examiner erred in concluding Appellant’s arguments attack the references
individually. Appeal Br. 19–20. This assertion does not amount to a
separate, substantive argument in support of the patentability of claim 1, but,
rather, is a characterization of what Appellant has already argued. For the
reasons discussed above, Appellant’s arguments are unavailing.
In the Reply Brief, aside from restating the arguments made in the
Appeal Brief, Appellant asserts that paragraphs 139 and 161 of Middleton
do not support the Examiner’s position because they “address reducing the
amount of the surface area of the flanges that are covered by the injection-
molded material and do not address reducing the thickness of the injection-
molded material.” Reply Br. 8.
This argument is unpersuasive of Examiner error because paragraphs
139 and 161 of Middleton disclose what the Examiner says they disclose,
namely, reducing the amount of material can reduce the cost and difficulty
of manufacturing the tray. Middleton’s disclosure of the benefits of
reducing the amount of material used in its coating at least suggests reducing
the thickness of the coating. In any event, the Examiner relies on Dircks to
disclose an adhesive layer approximately 1 mil in thickness, and this finding
is uncontested by Appellant. See Non-Final Act. 4. The Examiner’s
rejection does not rely on Middleton alone to satisfy the requirement in
claim 1 for the coating to have a thickness of 1 to 2 mils, and paragraphs 131
Appeal 2020-003109
Application 15/053,151

14
and 169 of Middleton support the Examiner’s rationale for incorporating the
film thickness disclosed by Dircks in Middleton’s coating.
Appellant also argues that the Examiner’s proposed modification to
Middleton’s coating would render Middleton’s container unsatisfactory for
its intended use. Reply Br. 9–10 (citing Decl. ¶ 8). Specifically, Appellant
argues “reducing the thickness of the encapsulated rim of Middleton as
proposed by the Examiner would result in inconstancies in the material that
may render the encapsulated rim unsatisfactory for the intended purposes of
providing structural support and a sealing surface for forming a hermetic
seal.” Id. at 10.
As discussed above, in some embodiments, Middleton’s coating layer
need not provide structural support. See Middleton ¶ 161. Furthermore, the
Examiner’s proposed modification does not require the flange of
Middleton’s container to exclude any support in locations other than where it
is 1–2 mil thick. With respect to “inconstancies” or inconsistencies in the
coating material, the Gilpatrick Declaration states “one skilled in the design
of lidded containers would expect that an encapsulated rim having a smaller
thickness would result in inconsistencies in the material that can result in
poor material strength, for example.” Decl. ¶ 8. The Gilpatrick Declaration
provides no explanation of the magnitude of this technical effect or why it
would occur. Further, even assuming, for the purpose of argument, that such
inconsistencies “can” occur as Appellant alleges, Appellant provides no
evidence that such inconsistencies would render Middleton’s container
unsuitable for its intended use.
We have considered all of Appellant’s arguments in support of the
patentability of claim 1, but find them unavailing. Accordingly, we sustain
Appeal 2020-003109
Application 15/053,151

15
the rejection of claim 1 as unpatentable over Middleton, Lentjes, and Dircks.
Claims 2–7, 9–15, 17, 43, and 44 fall with claim 1.
Rejection II (Middleton, Lentjes, Dircks, and Finchum)
Claim 16
Appellant does not make arguments for the patentability of claim 16
aside from those discussed above regarding claim 1. See Appeal Br. 8–21.
Accordingly, for the same reasons, we sustain the rejection of claim 16.

CONCLUSION
The Examiner’s rejections are affirmed.

DECISION SUMMARY

Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–7, 9–15,
17, 43, 44
103 Middleton, Lentjes,
Dircks
1–7, 9–15,
17, 43, 44

16 103 Middleton, Lentjes,
Dircks, Finchum
16
Overall
Outcome
1–7, 9–17,
43, 44

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