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 .
Election/Restrictions
Applicant’s election without traverse of Group I in the reply filed on 18 August 2025 is acknowledged.
Claim 19 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Group II, there being no allowable generic or linking claim.
Claim Rejections - 35 USC § 103
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 of this title, 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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-7 and 9-11, 13, 14, and 16-18 are rejected under 35 U.S.C. 103 as unpatentable over U.S. 2011/0151196 A1 (“Schmidt”) in view of U.S. 6,159,882 A (“Kean”) and U.S. 2013/0101805 A1 (“Altshuler”).
Considering claim 1, Schmidt discloses a flexible coformed nonwoven web that contains a matrix of meltblown fibers and an absorbent material, wherein during the meltblown process, a plurality of meltblown fibers (viz. molten thermoplastic fibers) are fed into a high velocity air stream and to be deposited on a collecting surface to form a web formed of randomly dispersed fibers. (Schmidt abs. and ¶¶ 0030 and 0031). As such, these meltblown fibers are binder fibers. Schmidt is analogous, for it is also directed to autogenously bonded nonwovens having non-hollow projections.
Schmidt further dislcoses that the coformed nonwoven web has overall basis weight of 25 to 150 gsm, with various examples having basis weight ~100 gsm. (Id. ¶ 0049 and Table 1). It would have been obvious to one of ordinary skill in the art to have selected the overlapping portion of the ranges disclosed by the reference because overlapping ranges have been held to be a prima facie case of obviousness. (See In re Wertheim, 191 USPQ 90, In re Woodruff, 16 USPQ2d 1934, and In re Peterson, 65 USPQ2d 1379; MPEP § 2144.05).
Schmidt discloses that the coformed web may be imparted with texture using a 3D forming surface, in particular a foraminous surface through which fibers may be drawn to form tufts that correspond to the openings in the forming surface, so that the tufts are filled with fibers. (Id. ¶¶ 0033, 0056, and 0057). As shown in Figs. 3 and 4 of Schmidt, adjacent tufts are separated by planar regions and arranged in an ordered array; thus, these tufts, which are also termed offset regions, are considered to be projections, and the planar portion is considered to be a planar base layer.
Schmidt expressly discloses that “the density of the offset region is substantially equal to that of the planar base region”, and this disclosure is considered to read on the limitation that a density of the base is the same as a density of a projection element. (Id. ¶ 0005 and 0058). In particular, substantially equal is considered to have included the disclosure of equal or, in the alternative, would have motivated person having ordinary skill in the art to make the two densities equal. Schmidt differs from the claimed invention, as Schmidt 1) does not disclose using a template foam-laying process and 2) does not disclose various properties such as compression resistance and air premeability.
Re: deficiency 1), this limitation is a is a product by process limitations. “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” (In re Thorpe, 227 USPQ 964, 966). Once the Examiner provides a rationale tending to show that the claimed product appears to be the same or similar to that of the prior art, although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious different between the claimed product and the prior art product. (In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir. 1983); MPEP § 2113).
In the instant case, the only difference between the air-laying method of the prior art and the templated foam-laying process as claimed is the method by which the fibers are deposited before consolidation. Otherwise, the types of fibers used (synthetic bicomponent binder fibers) and the general method for consolidation (softening of binder fibers to that they are tacky to allow bonding before the fibrous mass is allowed to cool and take form) are the same. With there being nothing on the record indicating of a difference between products formed by the two methods, in particular as Applicant has thus far not taken up offer to submit evidence on this despite an invitation from Examiner, the claimed product is not deemed non-obvious unless evidence showing otherwise.
Re: deficiency 2), there are two deficiencies: 2a) compression resistance and 2b) air permeability. For compression resistance, it is known to improve strength of a nonwoven in the direction normal to a primary surface to the nonwoven (viz. z-direction) using a shake chute the aligns at least about 20% of the fibers along the Z-direction of the nonwoven. (Kean abs. and col. 4 line 12-67). Kean is analogous, as it is from the same field of endeavor as that of the instant application (nonwovens). Person having ordinary skill in the art has reasonable expectation of success that the teachings of Kean could be applied to Schmidt, as Kean is also concerned with an autogenously bonded nonwoven (bonded via bicomponent binder fibers). It would have been obvious to one of ordinary skill in the art, at the effective filing date of the invention, to have aligned at least about 20% of the fibers constituting the nonwoven of Schmidt in the Z-direction, in order to improve strength in the direction normal to the main plane of a nonwoven. (Id. col. 1 line 49-53).
Re: deficiency 2b), it is known in the art of nonwovens having a 3D surface that air permeability can be adjusted by adjusting content of solid material. (Altshuler ¶ 0009). Silence of a reference on a quantitative limitation when the reference discloses the general characteristic is not deemed to support patentability unless there is evidence indicating such quantitative limitation is critical. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation”; MPEP 2144.05 II.A. The teaching of Altshuler thus demonstrates that person of ordinary skill in the art would know how to adjust for desired level of permeability, given a particular intended use.
It is further noted that Schmidt discloses that:
-the meltblown fibers used to form a nonwoven having a 3D surface may be multicomponent fibers, (Schmidt ¶ 0044);
-shape of the tuft may be adjusted via adjustment of the forming surface, (id. ¶¶ 0056-0057);
-tufts are can be tapered in shape and have circular cross-sections, (Id. ¶ 0056 and Fig. 4);
-that the absorbent material used to form the nonwoven may be in the form of cellulosic fibers, (id. ¶¶ 0045-0046); and
-that the fibers used to make the meltblown web may be continuous in length, which exceeds 3mm, (id. ¶ 0031).
These read on the limitations of claims 2, 3, 4, 5, 11, and 16.
The intended use of the coformed nonwoven web of Schmidt includes sanitary products such as diapers and sanitary napkins. (Schmidt ¶ 0061). It is noted that this intended use is largely similar to the intended use of the nonwoven of the Instant Application. Furthermore, as discussed above, there are substantial similarities between the nonwoven of Schmidt as modified by Kean and Altshuler and the nonwoven of the Instant Application, including aspects such as morphology of the nonwoven, method by which the projections are formed (viz. not via embossing but via method in which the projections are passive shaped according to an external mold), density/ areal weight of the nonwoven, and amount of binding fibers used in the nonwoven. It is concluded that person of ordinary skill in the art could have readily adjusted parameters taught in the prior art to the claimed levels, due to substantial similar methods of construction and intended use. Again, echoing the point made above, silence of a reference on a quantitative limitation when the reference discloses the general characteristic is not deemed to support patentability unless there is evidence indicating such quantitative limitation is critical.
Schmidt, Kean, and Altshuler renders obvious claims 1-5, 11, and 16.
Considering claims 6 and 9, given disclosures of ¶ 0058 of Schmidt, designing tufts having uniform density is considered obvious.
Considering claim 7, basis weight (viz. areal weight) is obtained by dividing density by thickness. As the density at the top and bottom of the tuft is the same, and as the fiber deposition method does not vary the amount of fiber deposited per unit thickness, it stands to reason that areal weight of a projection would also be uniform.
Considering claims 10, 13, and 14, Schmidt discloses tuft height of 0.25 – 9 mm. (Id. ¶ 0057). Furthermore, it may be surmised that diameter of each tuft is 0.8 to 2.5 mm. (Id. ¶ 0058). It is clear that the former can exceed the latter; furthermore, ratio of the former to the latter may be up to ~ 11. It would have been obvious to one of ordinary skill in the art to have selected the overlapping portion of the ranges disclosed by the reference because overlapping ranges have been held to be a prima facie case of obviousness. (In re Wertheim, 191 USPQ 90, In re Woodruff, 16 USPQ2d 1934, and In re Peterson, 65 USPQ2d 1379).
Considering claim 17, while Schmidt does not expressly disclose density of the coformed nonwoven, given what is known re: nonwovens having surface topography (viz. density less than 0.06 g/cc per ¶ 0112 of Altshuler), the claimed density is considered obvious. Person having ordinary skill in the art would have been motivated to configure the nonwoven of Schmidt to exhibit such as density, as Altshuler is considered to have demonstrated that such a density range is known in the art of autogenously bonded nonwovens. This rationale for supporting a finding of obviousness, where one reference demonstrates that a particular material is suitable for a particular intended use, is considered appropriate under the guidelines set forth in MPEP 2144.07.
Considering claim 18, as may be gleaned from Fig. 4 of Schmidt, the arrangement of tufts is uniform in two different directions.
Response to Arguments and Additional Comments
In view of amendments to claim 1, the previously instated 35 U.S.C. 112(b) rejection of claims 1-7, 9-11, and 13-18 has been withdrawn.
Applicant’s arguments against the combination of Schmidt, Kean, and Altshuler has been considered, but it is noted that the distinct arguments as set forth by Applicant thus far are only in the form of Counsel’s arguments. (See pg. 10 ¶ 2 of Response of 7 March 2025). While these are acknowledged, Applicant is reminded that Counsel’s arguments cannot take place of properly submitted evidence, and the arguments thus far are deemed to be no more than Counsel’s arguments. Nonetheless, echoing points that Examiner previously made at ¶ 37 of the Non-Final Office Action of 7 November 2024, Examiner still welcomes evidence contained in a properly executed declaration that can rebut the prima facie cases of obviousness made above.
As a separate matter, further requiring the synthetic binder fibers to be nanovoided fibers would define claim 1 over the rejection based on Schmidt as set forth above.
Concluding Remarks
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Zheren Jim Yang whose telephone number is (571)272-6604. The examiner can normally be reached on M-F 10:30 - 7:30 ET.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Frank Vineis can be reached on (571)270-1547. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Z. Jim Yang/Primary Examiner, Art Unit 1781