Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
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Claims 1-4, 6-27 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of copending Application No. 19/259,271 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because each claims an absorbent article including a nonwoven fluid management layering having the same amounts and types of absorbent, resilient and stiffening fibers.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1-4, 6-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Viens et al U.S. Patent Application Publication No. 2014/0343523 in view of Nguyen, U.S. Patent Application Publication No. 2008/0119806.
Viens discloses a hydroentangled, (spunlaced), thermally bonded structure. See paragraph 0013. The structure is a secondary topsheet having a basis weight of 35-65 gsm. See paragraph 0011. The structure can include PET fibers having a dtex of 3.5-12 in amounts of 5-30% by wt. which correspond to the claimed resilient fibers, (see paragraph 0010 and 0053), bicomponent binder fibers in amounts of 30-55% by weight which correspond to the claimed stiffening fibers, (see paragraph 0053), and 30-60% by weight of cellulosic fibers such as rayon having a dtex of 1.3-7 which correspond to the claimed absorbent fibers, (see paragraph 0050-0051). The step of heating raises the temperature of the hydroentangled structure to soften the sheath of the bicomponent fibers to form bonds between the sheath. See paragraph 0061. The stiffening fibers can have a dtex of 1.7 in the example set forth in paragraph 0065. The stiffening fibers can comprise bicomponent fibers having a polyester core and polyethylene sheath. See paragraph 0046. The structure can have a MD bending length of about 0.2-12 mN/cm, wherein the bending length is controlled by the heating and bonding of the bicomponent fibers. See paragraph 0049, 0060-0061.
With regard to the claims as amended 9/23/25, Viens teaches at paragraph 0053 that the non-cellulosic fibers can be polyethylene terephthalate, (PET), that the fibers can be spiral, scalloped oval, round, trilobal, scalloped ribbon, and so forth and that the PET fibers can be solid, hollow or multi-hollow. Further, at paragraph 0053. Viens teaches that the cellulosic fibers can be viscose. See paragraph 0053.
Viens differs from the claimed invention because it is silent as to caliper at particular pressures and the compression distance and while it does disclose a polyester/polyethylene bicomponent fiber, it does not clearly teach that the polyester is PET.
However, Nguyen discloses a carded nonwoven article, (see paragraph 0018), comprising absorbent fibers such as regenerated cellulose, (paragraph 0020), bicomponent fibers having a polyethylene terephthalate core and a polyethylene sheath, (paragraph 0028), and other synthetic fibers such as polyethylene terephthalate fibers. See paragraph 0029.
Therefore, it would have been obvious to have employed PET as the core polyester in the bicomponent fibers of Viens, in view of their art recognized suitability for forming the sheath in a nonwoven comprising the same types of fibers as used in Viens for the same purpose. Once the particular bicomponent fibers taught by Nguyen were provided in the structure of Viens, it would be reasonable to expect that either the structure would have the same caliper and compression distance, since the structure would be the same fibers, in the same amounts, combined by the same method of hydroentangling and then heat treated to form bonds between the bicomponent fibers to provide a bending stiffness as claimed, or else, in the alternative, it would have been obvious to have selected the bonding conditions and types, (melt bonding and hydroentangling), as well as the particular proportions and sizes of fibers within the ranges taught by Viens which produced a nonwoven having the desired caliper and compression distance.
Claim(s) 20-26 is/are rejected under 35 U.S.C. 103 as being unpatentable over Viens et al, U.S. Patent Application Publication No. 2014/0343523 in view of Nguyen, U.S. Patent Application Publication No. 2008/0119806 as applied to claims above, and further in view of Wirtz et al, U.S. Patent Application Publication No. 2014/0005622.
Viens differs from the claimed invention because it does not disclose that the structure includes multiple layers, (strata).
However, Wirtz discloses an acquisition layer or secondary topsheet which comprises more than one layer. Wirtz teaches an acquisition system which can include one or more sublayers which may be the same or different materials. The layers can be formed to have different porosity which is equated with different levels of void space. See paragraph 0141, 0142, 0144, 0149.
Therefore, it would have been obvious to have employed a layered acquisition system as taught by Wirtz in the structure of Viens in order to provide improved fluid capture and flow through the secondary topsheet or acquisition layer of Viens into the absorbent core. Since Viens and Nguyen both teach carded nonwovens as secondary topsheets, it would have been obvious to have used carded nonwovens to form the layers of Wirtz.
Claim(s) 27 is/are rejected under 35 U.S.C. 103 as being unpatentable over Viens in view of Nguyen and Wirtz as applied to claims above, and further in view of Michiels et al, U.S. Patent Application Publication No. 2015/0065974.
Viens in view of Nguyen and Wirtz do not clearly teach providing the layer closest to the wearer to a higher void volume than a lower layer.
However, Michiels teaches forming a porosity gradient in acquisition layers wherein the portion closest to the wearer has the highest void volume and porosity in order to provide a funnel effect which directs liquid towards the core. See paragraph 0088.
Therefore, it would have been obvious to one of ordinary skill in the art to have provided layers having different porosity as taught by Michiels in order to direct liquid from the surface of the absorbent article into the core.
Applicant's arguments filed 9/23/25 have been fully considered and are moot in view of the new rejections set forth above.
Applicant argues that there is no rationale or logical underpinning for the suggestion to use PET as the core in Viens. However, as set forth above, Viens already teaches a polyester core generally, since Viens teaches a bicomponent fiber having a sheath/core structure wherein polyolefin is used as the binder component. See paragraphs 0046, 0047, 0053. Nguyen teaches a substantially similar structure and teaches a particular type of polyester which is suitable for as the core of the bicomponent fiber. Therefore, one of ordinary skill in the art, given the clear teaching of Nguyen of a particular polyester suitable for use as the core of the bicomponent fiber in a substantially similar structure, would have had a reasonable expectation that the PET core could have been successfully used as the particular type of polyester in the bicomponent fiber of Viens.
Applicant argues that there must be a benefit which would arise from the modification in order to make the combination. However, it is obvious to substitute one equivalent material for another and it is obvious to select a specific material when the generic material is disclosed. Thus, Viens teaches polyester which is a generic terms. Nguyen teaches PET which is a specific polyester. Nguyen teaches that the PET is suitable for use as the polyester core of a sheath core fibers in a substantially similar structure. Therefore, there would have been a reasonable expectation that the specific material PET would have been able to have been successfully used as the particular polyester in Viens.
Applicant argues that Viens provides an enormous variety of arrangements other than core/sheath such as side by side, concentric or eccentric. However, concentric and eccentric bicomponent fibers are sheath/core fibers. In a concentric sheath/core fiber, the center of the core is also the center of the sheath, while in an eccentric sheath/core fiber, the center of the core is not the center of the sheath. Therefore, Viens appears to disclose either sheath/core or side by side fibers as the bicomponent fibers. Further, Viens discloses particular sheath/core fibers having a polyester core and a polyethylene sheath, (see paragraphs 0046, 0047, 0053). Therefore, Viens clearly teaches a sheath/core fiber having a polyester core and a polyethylene sheath. Viens differs only in that it does not clearly disclose the particular type of polyester used as the core. Nguyen teaches employing the particularly claimed type of polyester, (PET), as the core of a sheath/core fiber used as a binding fiber in a carded nonwoven which also includes absorbent and resilient fibers.
Applicant argues that the action is cherry-picking disclosure based on guidance only found in the present disclosure. However, as set forth above, Viens discloses the identical structure except for only teaching polyester generally as the core, while the instant invention recites PET as the polyester core. Viens already clearly teaches a bicomponent fibers having a polyester core because it teaches that the polyolefin is used as the binding material in the sheath/core fiber. See paragraph 0053. Nguyen teaches a bicomponent fiber for use in an absorbent carded structure which also includes absorbent cellulosic fibers and PET fibers wherein the core of the bicomponent fiber can be PET which is a particular type of polyester and the sheath can be polyethylene. Viens teaches the identical structure as claimed except it teaches a bicomponent fiber with a polyester core and a polyethylene sheath, but not specifically a PET core, (noting that PET is a type of polyester). Therefore, the person of ordinary skill in the art would have had a reasonable expectation that the particular polyester disclosed as useful in Nguyen would have been useful as the polyester core in Viens since it was known as a particular type of polyester useful as the core component in bicomponent sheath core fibers used in absorbent articles having absorbent cellulosic fibers and other fibers such as PET fibers in addition to the bicomponent fibers.
Applicant argues that the action includes insufficient conclusory statements because the same method is not employed in Viens as in the claimed invention because the published application states that the use of a simplified web path reduces radial compressive stresses/excessive tensile forces and that thus the caliper of the fluid management layers can be maintained. However, as set forth in the previous action in support of the statement that the same/similar method is employed, the instant application states that the number of water jets and the use of rolls can be reduced and the level of entanglement provided can therefore be lower because the additional bonding is provided by the heat treatment, (paragraph 0032 of the published application). The application does not provide a particular number of water jets or rolls which constitutes a reduced or lower level or clearly describe the simplified process in terms of a particular number or water jets or rolls or particular pressures, etc. Similarly, Viens teaches selecting the particular number of jets depending on the degree of bonding required. The instant specification does not provide any particular process which differs from that disclosed in Viens, since both teach employing hydroentangling and then drying and heat treating to melt the sheath and provide bonding to the hydroentangled structure. Therefore, there is a sound basis for the expectation that since the same process is used and the same types of fibers are used in the same proportions, once the PET core is used as the polyester core in Viens, the resulting product would either have the claimed properties or else that it would have been obvious to have selected the bonding conditions and types, (melt bonding and hydroentangling), as well as the particular proportions and sizes of fibers within the ranges taught by Viens which produced a nonwoven having the desired caliper and compression distance.
Applicant argues that the instant application provides specific details on how to maintain the necessarily tensile strength despite reduced entanglement by heat treating the stiffening fibers. However, Viens also teaches heat treating the stiffening fibers.
Applicant argues that the instant application employs strategic fiber selection which is integral to the enablement of the new method. However, Viens teaches the same fibers, save for the fact that while it discloses a polyester core in the bicomponent fibers it does not disclose a PET core. Viens further teaches selecting the particular number of jets depending on the degree of bonding required. Therefore, Viens teaches the same fibers and the same method. The instant specification does not provide a particular number of water jets or rolls which constitutes a reduced or lower level or clearly describe the simplified process in terms of a particular number or water jets or rolls or particular pressures, etc. since it would have been within the ability of one of skill in the art to select these parameters.
Applicant argues that the present invention provides unexpected results because the examples show a direct head to head comparison with the primary reference, (Viens). However, Viens discloses a polyester core and a polyethylene sheath, while the comparative examples include a polypropylene core and a polyethylene sheath. Therefore, they are not a direct head to head comparison. Further, the showing of the examples is a particular material which is much narrower than the instant claims. For example, the claims are drawn to materials having a range of basis weights as well as a range of linear densities for each type of fiber. The showing does not extrapolate or establish that the difference would be found over the entire range, or establish the criticality of the claimed range. Additionally, the showing does not establish that the results are both significant and unexpected. Finally, in response to applicant's argument that it would not have been expected that the PET core provides increased caliper, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). Viens already teaches a polyester core and a polyethylene sheath. Nguyen teaches that PET, ( particular type of polyester) was useful for the core of a sheath/core fiber for use in an absorbent article including the same types of fibers as the claimed fibers. Therefore, the use of a bicomponent fiber having a polyester core wherein the polyester is PET would have been obvious to one of ordinary skill in the art considering the structures of Viens and Nguyen.
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/ELIZABETH M IMANI/Primary Examiner, Art Unit 1789