DETAILED ACTION
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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on February 26, 2026 has been entered.
Claims 1, 4-8, 10-11, 13-16, and 21-22 are currently pending in the above identified application.
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, 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.
Claims 1, 4-8, 11, 13, and 15-16 are rejected under 35 U.S.C. 103 as being unpatentable over US Pub. No. 2003/0207640 to Anderson.
Regarding claims 1, 4-8, 11, 13, and 15-16, Anderson teaches a web having breathability and liquid impermeability, including composite or laminate (barrier laminate) of a nonwoven web (nonwoven layer) and a liquid impervious, microporous film exhibiting a MVTR of at least about 2000 g/m2/24 hr (breathable microporous film) affixed to the nonwoven (Anderson, abstract, para 0010-0012, 0037, 0096). Anderson teaches incremental stretching activates the pore-forming agent and results in a web having pores and channels (Id., para 0011), reading on the film including a plurality of pore formed from incremental stretching. Anderson teaches the pore forming agent having an average size less than 5 microns (Id., para 0074). Anderson teaches the micropores preferably having a mean pore size less than 0.4 microns, more preferably less than 0.3 microns (Id., para 0082), reading on the plurality of pore having an average pore diameter being less than 0.3 micron. Anderson does not teach the film being multilayer (Id., all, especially para 0070-0071, 0076-0080), reading on the microporous film consisting of a single layer. Anderson teaches the nonwoven web and film being adhered to each other by an adhesive or being extrusion coated onto one of the surface of the nonwoven web (Id., para 0099-0100), reading on the microporous film layer being adhesively bonded to the nonwoven layer or extrusion coated onto the nonwoven layer. Anderson teaches the MVTR of the composite material (barrier laminate) when being used as a backsheet being preferably from about 500 to about 5000 g/m2/24 hr (Id., para 0118), which is part of a diaper, training pants, or hygiene garment (protective garment, claim 13) (Id., para 0109-0112).
While the reference does not specifically teach the claimed range of an average pore diameter from about 0.01 to about 0.09 microns and MVTR of about 500 to about 3500 g/24hrs/m2, specifically about 500 to about 1000 g/24hrs/m2 (claim 13), the disclosed range of the prior art combination overlaps with the instant claimed range. It should be noted that in the case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). The existence of overlapping or encompassing ranges shifts the burden to Applicant to show that his invention would not have been obvious. In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003). Furthermore, it would have been obvious to one of ordinary skill in the art before the effective filing date to adjust, vary, and optimize the average pore size and MVTR, such as within the claimed range, motivated by the desire to successfully practice the invention of the prior art based on the totality of the teachings of the prior art.
Anderson teaches larger pores allow undesired passage of liquids through (Anderson, para 0070). Anderson teaches the population of the large size pores/capillaries being indicative of leakage performance and therefore should have few large capillaries, preferably less than 0.1 microns (Id., para 0084). Anderson teaches the pore having an open area that permits the passage of air and moisture vapor while is not too large as to maintain the liquid impermeability (Id., para 0082-0083). While Anderson is silent with regards to the pore-size-distribution, Anderson teaches a desirability for a narrow pore-size-distribution and teaches the capillaries having a small size. It would have been obvious to one of ordinary skill in the art before the effective filing date to form the composite of Anderson, wherein the pore-size-distribution standard deviation is minimized, such as within the claimed range of from about 0.01 to about 0.05 microns (claim 1), in order to minimize leakage while ensuring good breathability as taught by Anderson as affected by pore size.
The limitation “a plurality of pore formed from incremental stretching in a single direction” is interpreted as a product-by-process limitation. Absent a showing to the contrary, it is Examiner's position that the article of the applied prior art is identical to or only slightly different than the claimed article. Even 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 (Fed. Cir. 1985). The burden has been shifted to Applicant to show unobvious difference between the claimed product and the prior art product. In re Marosi, 218 USPQ 289 (Fed. Cir. 1983). The applied prior art either anticipated or strongly suggested the claimed subject matter. Anderson teaches the formation of pore through incremental stretching that actives pore-forming agents to results in pore and channels and does not require spherical pores. It is noted that if Applicant intends to rely on Examples in the specification or in a submitted declaration to show unobviousness, Applicant should clearly state how the Examples of the present invention are commensurate in scope with the claims and how the Comparative Examples are commensurate in scope with the applied prior art.
Regarding claims 4-5, Anderson teaches the pore-forming agent include organic materials and inorganic particulates (Anderson, para 0071-0073), reading on the film layer further comprising a plurality of filler particles, including inorganic filler, organic filler, polymeric filler, or a combination thereof.
Regarding claims 6-7, Anderson teaches the nonwoven including spunbond nonwovens (Id., para 0034, 0068), reading on structure 1, where a is 1 and b and c are 0.
Regarding claim 8, Anderson teaches the film comprising a synthetic polymeric material (Anderson, para 0076-0078).
Regarding claims 11 and 15 and the claimed level of chemical protection, although the prior art does not disclose this feature, the claimed properties are deemed to be inherent to the structure in the prior art since the prior art combination teaches an invention with a substantially similar structure and chemical composition as the claimed invention. Anderson teaches a laminate having a microporous membrane with the claimed pore structure laminated to a nonwoven. Products of identical structure and composition cannot have mutually exclusive properties. The burden is on the Applicants to prove otherwise.
Claim 16, Anderson shows the backsheet (first barrier laminate) being bonded to topsheet and side panels or containing a holder or liner (Anderson, Fig. 15, para 0111-0116), reading on a second barrier laminate being bonded to the first barrier laminate.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over US Pub. No. 2003/0207640 to Anderson, as applied to claims 1, 4-8, 11, 13, and 15-16 above, in view of US Pub. No. 2010/0041290 to Visioli.
Regarding claim 10, Anderson teaches the nonwoven web and film being adhered to each other by an adhesive using a discontinuous pattern applied to a surface of the film (Anderson, para 0098-0099).
Anderson does not explicitly teach the discontinuous pattern covering from about 2% to about 40% of a first surface of the breathable microporous film layer.
However, Visioli teaches a protective structure comprising a permeable membrane, such as microporous film, adhered to a substrate, such as a nonwoven textile, wherein the adhesive is present as a discontinuous layer between the membrane layer and the substrate covering about 10 to about 40 percent of the substrate (Visioli, abstract, para 0073, 0081, 0087). Visioli teaches the membrane having a vapor transmission rate of at least 2,000 g/m2/24 h, up to about 10,000 g/m2/24 hr (Id., para 0018). Visioli teaches the membrane being a porous polyethylene film having a pore size of about 0.25 micron (Id., para 0082). Visioli teaches the discontinuous layer maintains water vapor permeability (Id., para 0087).
It would have been obvious to one of ordinary skill in the art before the effective filing date to form the laminate of Anderson, wherein discontinuous pattern adhesive covers about 10 to 40 percent of the film substrate taught by Visioli, motivated by the desire of applying an adhesive in a conventionally known manner predictably suitable for attached a porous film to a nonwoven substrate and by the desire of maintaining the water vapor permeability.
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over US Pub. No. 2003/0207640 to Anderson, as applied to claims 1, 4-8, 11, 13, and 15-16 above, in view of WO 99/30904 to Kimberly Clark.
Regarding claim 14, Anderson teaches the composite material (barrier laminate) being used as part of a diaper, training pants, or hygiene garment (protective garment, claim 13) (Anderson, para 0096, 0109-0112, 0003).
Anderson does not explicitly teaches the laminate being used in a pair of coveralls, jacket, sleeves, a jump-suit, a pair of pants, a foot covering, a boot covering, a glove, a hood, or an apron.
However, Kimberly Clark teaches a breathable barrier laminate comprising a microporous multilayer film having micropores and a nonwoven web (nonwoven layer) bonded to at least one surface of the microporous film (Kimberly Clark, abstract, p. 3). Kimberly Clark teaches the laminate being useful as an outer cover for disposable diaper (backsheet), surgical drapes, protective apparel (protective garment) including coveralls (protective) (Id., p. 1, 7). Kimberly Clark teaches the material meeting the requirements of ASTM Standard F-1670 and ASTM Standard F-1671 requiring barrier requirements (Kimberly Clark, p. 7). Kimberly Clark teaches the multilayer film having a WVTR in the range of about 1200 g/m2/24 hours to about 4500/g/m2/24 hours (Kimberly Clark, p. 6). Kimberly Clark teaches the micropores having an average pore size in the range of about 0.05 to about 0.06 microns (Id., p. 6).
It would have been obvious to one of ordinary skill in the art before the effective filing date form the laminate of Anderson, wherein the laminate is used in a surgical drape, coverall or protective apparel as taught by Kimberly Clark, motivated by the desire of forming conventionally known products predictably suitable for use of a laminate containing a microporous film and nonwoven having breathability and liquid impermeability and known as art recognize equivalent for microporous film and nonwoven laminate application to diaper backsheets. It is known in the art to form these products using multiple material or sheets, reading on a second barrier being bonded to the first barrier laminate.
Claims 21-22 are rejected under 35 U.S.C. 103 as being unpatentable over US Pub. No. 2003/0207640 to Anderson, as applied to claims 1, 4-8, 11, 13, and 15-16 above, in view of USPN 6,231,557 to Krautkramer and optionally, US Pub. No. 2017/0062785 to Shi.
Regarding claims 21-22, Anderson teaches a web having breathability and liquid impermeability, including composite or laminate (barrier laminate) of a nonwoven web (nonwoven layer) and a liquid impervious, microporous film exhibiting a MVTR of at least about 2000 g/m2/24 hr (breathable microporous film) affixed to the nonwoven (Anderson, abstract, para 0010-0012, 0037, 0096). Anderson teaches the film comprising pore forming agents, including particles coated with a fatty acid ester having an average size less than 5 microns (Id., para 0071-0074), reading on a plurality of filler particles comprising a coating comprising a fatty acid. Anderson also incorporated by reference USPN 4,472,328 to Sugimoto (Id., para 0073), which teaches the use of surface treatment with fatty acid (Sugimoto, col. 2 lines 50-54), reading on plurality of filler particles comprising a coating comprising a fatty acid. Anderson teaches the micropores preferably having a mean pore size less than 0.4 microns, more preferably less than 0.3 microns (Id., para 0082), reading on the plurality of pore having an average pore diameter less than 0.3 micron. Anderson does not teach the film having a skin layer (Id., all, especially para 0070-0071, 0076-0080), reading on the microporous film being devoid of any skin layers. Anderson teaches the nonwoven web and film being adhered to each other by an adhesive or being extrusion coated onto one of the surface of the nonwoven web (Id., para 0099-0100), reading on the microporous film layer being adhesively bonded to the nonwoven layer or extrusion coated onto the nonwoven layer (claim 22). Anderson teaches the MVTR of the composite material (barrier laminate) when being used as a backsheet being preferably from about 500 to about 5000 g/m2/24 hr (Id., para 0118).
Anderson teaches larger pores allow undesired passage of liquids through (Anderson, para 0070). Anderson teaches the population of the large size pores/capillaries being indicative of leakage performance and therefore should have few large capillaries, preferably less than 0.1 microns (Id., para 0084). Anderson teaches the pore having an open area that permits the passage of air and moisture vapor while is not too large as to maintain the liquid impermeability (Id., para 0082-0083). While Anderson is silent with regards to the pore-size-distribution, Anderson teaches a desirability for a narrow pore-size-distribution and teaches the capillaries having a small size. It would have been obvious to one of ordinary skill in the art before the effective filing date to form the composite of Anderson, wherein the pore-size-distribution standard deviation is minimized, such as within the claimed range of from about 0.01 to about 0.05 microns, in order to minimize leakage while ensuring good breathability as taught by Anderson as affected by pore size.
Anderson is silent with regards to the percent elongation at break of the laminate.
However, Krautkramer teaches a diaper comprising a backsheet, such as a laminate of a nonwoven fabric with a film, that is resistance to liquid penetration having an elongation at peak load of at least 50% up to 200% (Krautkramer, abstract, col. 6 lines 50-68, col. 7 lines 18-63). It would have been obvious to one of ordinary skill in the art before the effective filing date to form the laminate of Anderson, wherein the laminate has an elongation as taught by Krautkramer, motivated by the desire of forming conventionally known backsheet material having predictable suitable properties for use in a diaper.
While the reference does not specifically teach the claimed range of an average pore diameter from about 0.01 to about 0.09 microns, filler particles having an average particle size from 0.5 to 1.5 microns, MVTR of about 500 to about 3500 g/24hrs/m2 and an elongation from about 5% to about 150%, the disclosed range of the prior art combination overlaps with the instant claimed range. It should be noted that in the case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). The existence of overlapping or encompassing ranges shifts the burden to Applicant to show that his invention would not have been obvious. In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003). Furthermore, it would have been obvious to one of ordinary skill in the art before the effective filing date to adjust, vary, and optimize the average pore size, filler size, MVTR, and elongation, such as within the claimed range, motivated by the desire to successfully practice the invention of the prior art based on the totality of the teachings of the prior art. Additionally, Shi teaches a microporous membrane having an average pore size in the range of about 0.04 to about 0.5 microns and containing a filler with an average particle size in the range of about 0.01 to about 2 microns (Shi, para 0050-0052), thereby teaching the use of smaller particle filler in microporous membrane being known. It would have been obvious to one of ordinary skill in the art before the effective filing date to form the laminate of the prior art combination, wherein coated particles have an average particle size as taught by Shi, motivated by the desire of using conventionally known particle size predictably suitable for use in forming microporous membrane and within the disclosed range of Anderson forming pore within the disclosed range and overlapping with the claimed range. It should be noted that in the case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). The existence of overlapping or encompassing ranges shifts the burden to Applicant to show that his invention would not have been obvious. In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003).
Response to Arguments
Applicant's arguments filed December 22, 2025 have been fully considered but they are not persuasive.
Applicant argues that the prior art fails to teach or suggest (i) a standard deviation from about 0.01 microns to about 0.05 microns; (ii) an MVTR of about 1000 g/24hrs/m2 as determined by ASTM Test method E-96D as recited in claim 13; and (iii) a plurality of filler particles having an average particle size from 0.5 to 1.5 microns and comprising a coating comprising a fatty acid as recited in independent claim 21. Examiner respectfully disagrees. Applicant argues that Anderson teaches the composite having a MVTR in the range of 2000-4000 g/m2/24 hr and discloses a mean pore size in the range of 0.1 microns to about 0.25 microns. While Anderson teaches a preferred embodiment having a mean pore size ranging from about 0.1 microns to about 0.25 microns, Anderson teaches more broadly a mean pore size less than 0.3 microns. Examiner would also like to note that about 0.1 microns would appear to read on about 0.09 microns. Applicant argues a MVTR of about 500 to about 1000 g/24hrs/m2, which overlaps with the disclosed range of Anderson of about 500 to about 5000 g/m2/24 hr (Anderson, para 0118). Applicant argues that the standard deviation of the pore size distribution of Anderson is wide and absence of any specific teaching of standard deviation in pore size distribution and mere generic teaching by Anderson, a skilled person would be devoid of selecting/ maintaining the standard deviation of the pore size distribution from about 0.01 micron to about 0.05 microns. Examiner respectfully disagrees. Anderson teach avoiding large capillaries and teach open air being linked to air and moisture vapor permeability but too large allows liquid permeability, therefore teaching a pore size being a result effective variable with regards to air and moisture vapor passage while too large allows liquid through. Anderson also teaches avoiding inhomogeneous pore size as this leads to leakage problems (id., para 0088), indicating a strong desire for homogeneous pore size. Therefore a narrow pore size distribution would have been obvious to one of ordinary skill in the art before the effective filing date to ensure good air and moisture vapor permeability while avoid large openings that would allow liquid through. Applicant points to Fig. 13 as showing a wide pore size distribution but Fig. 13 is “an enlarged, fragmentary, diagrammatic, cross-sectional view of a portion of a microporous film after the film has passed through a pair of forming rolls, to impart breathability to the film” (Id., para 0025) and not a image. Anderson teaches the micropore being developed by the stretching process (Anderson, para 0082, 0085), same as instant. Anderson teaches uniform sizes (Id., para 0087). Xu is relied upon for showing a pore size distribution was known and achievable in the art and therefore a reasonable expectation of success based on the desirable homogeneous/uniform pore size disclosed by Anderson. Applicant has not shown unexpected results with regards to the claimed pore size distribution or how one of ordinary skill in the art would not achieve the claimed range given the teachings of the prior art.
Anderson also teaches the film comprising pore forming agents (plurality of filler particles), including particles coated with a fatty acid ester having an average size less than 5 microns (Anderson, para 0071-0074), overlapping with the claimed range. Anderson also incorporated by reference USPN 4,472,328 to Sugimoto (Id., para 0073), which teaches the use of surface treatment with fatty acid (Sugimoto, col. 2 lines 50-54), reading on plurality of filler particles comprising a coating comprising a fatty acid. Applicant has not shown that the claimed particle size range is critical. The originally field disclosure teaches the plurality of filler particles “may have an diameter from about 0.1 to about 6 microns” (see para 0032 of the published application). Additionally, Shi shows it is known to use smaller particle in the formation of microporous membrane having similar pore size. As Applicant has not shown that the claimed range is critical, Examiner maintains the rejection detailed above.
Applicant argues that Anderson finds application of the breathable composite in disposable absorbent article to avoid liquid leakage and providing breathability whereas the claimed barrier laminate has wide and multiple application in protective garments. However, Applicant has not shown show the laminate of the prior art combination fails to meet this performance requirement. The avoidance of leakage while having a breathability also appears to be desired in the instant application as well. The crossover application is known in the art as evidence by USPN 6,319,455 which teaches an outer cover material for diapers but also teaches application in chemical protection (Kauschke, col. 15 lines 38-65).
Conclusion
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/JENNIFER A GILLETT/ Examiner, Art Unit 1789
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