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 .
Examiner Comments
Amended claims 1 and 163 state “such that that the third layer” (emphasis by Examiner).
Response to Arguments
Applicant’s arguments and associated amendment, see page 11, filed 11JUL2025, with respect to claim 10 have been fully considered and are persuasive. The 35 U.S.C. § 112(b) rejection of claim 10 has been withdrawn.
Applicant's arguments filed 11JUL2025 have been fully considered but they are not persuasive.
Regarding the fifth layer of claim 6, Applicant’s arguments are not persuasive. Cited [0033] states “the moisture-impermeable pad layer 208 includes a moisture-impermeable polymer layer 216 (e.g., breathable urethane or wax) on the surface 218 facing away from the wearer (and/or in contact with the outer fabric-body layer 104 of the undergarment) to create a leak-proof barrier against leakage of the liquid flow” which indicates that surface (218) comprises a layer as claimed.
Regarding the second layer positioning relative the third layer, Applicant’s arguments are not persuasive. [0029], as cited in discussion of the area covered by layers, states that each layer “may extend over at least some or all of the crotch region” (as previously cited), which supports the interpretation that the second layer may not extend over the entire area, thereby forming the claimed arrangement.
Applicant’s arguments, see page 11, filed 11JUL2025, with respect to the rejection(s) of claim(s) 1 under 35 U.S.C. § 103 have been fully considered and are moot in view of new grounds of rejection prompted by Applicant’s amendment to claims. A new ground(s) of rejection is made in view of Dunbar in view of Naylor as the claims allow for each of the first to fourth layers to be a single layer or a plurality of layers, thereby allowing the inclusion of outer layers (116) and (118) to be interpreted as portions of the first and fourth layers.
Claim Rejections - 35 USC § 103
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.
The factual inquiries 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.
Claim(s) 1, 2, 5-15, 17-20, 22, 23, 27-29, and 163 are rejected under 35 U.S.C. 103 as being unpatentable over US 20140039432 A1 (Dunbar et al.) in view of US 20100125264 A1 (Naylor).
Regarding claim 1, Dunbar teaches a garment (102) (Fig. 1B) comprising a body (104), two leg openings (108) [0025], and a crotch area (110) on an inner side of the garment (the area covering the genital area of a wearer [0025]),
wherein the crotch area is coupled to a rear region of the garment and the crotch area is coupled to a front region of the garment (via stitched lines seen in Fig. 1B and explained in [0034]), wherein the crotch area further comprises: a first layer (116), a second layer (204), a third layer (206), and a fourth layer (208 and 118), wherein each of the first layer, the second layer, the third layer, and the fourth layer extends from the front of the crotch to the rear of the crotch (the second, third, and fourth layers being part of a removable pad 202 shown in Fig. 5A to extend as required [0035]), wherein the first layer is an innermost layer (contacting the body [0026]), wherein the fourth layer is an outermost layer [0026], wherein the second and third layers are intermediate layers extending between the first and fourth layers (as the first and fourth layers make up the innermost and outermost layers), and wherein the first layer, the third layer, and the fourth layer each extends laterally from a first leg opening to a second leg opening (extending over all of the crotch region [0029]),
Dunbar teaches that each layer may extend over some, or all, of the crotch region and is considered to teach the second layer is positioned along the front to rear centerline of the third layer and extends only partially laterally towards the first leg opening and the second leg opening, such that the third layer extends beyond the second layer along the lateral sides of the second layer. A layer which does not extend as far as the other layers would necessarily create a structure in which the second layer forms an elevated portion along the front to rear centerline of the third layer, wherein each of the second layer and the third layer is a continuous layer (as they are taught to extend as previously cited [0029]). Dunbar additionally teaches changing the thickness of layers to control flow [0036];
wherein the first layer comprises a moisture-wicking material [0030], and
wherein each of the first to fourth layers is, independently, a single layer or a plurality of layers (being interpreted as single layers as shown in Fig. 2 or considered multiple layers when coatings are used, thereby forming additional layers as described in [0031]).
Dunbar fails to teach the use of one or more bonding strips for joining.
Naylor teaches an absorbent article (10) wherein bonding strips are used to adhere components [0013].
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the attachment method of Dunbar with the bonding strips of Naylor as bonding strips are a substitute for types of bonding known in the art [Naylor 0013].
Regarding claims 2 and 5-9, Dunbar further teaches the second layer (204) extends between the first layer (116) and the third layer (206), and the third layer extends between the second layer and the fourth layer (208 and 118) (Fig. 2, [0026]);
wherein two or more of the first to fourth layers are bonded or adhered together via a stitching, a knitting, an adhesive layer or a bonding tape [0034];
further comprising a fifth layer (216) (Figs. 2 and 5) [0033] extending between the fourth layer and the body, wherein the fifth layer is a single layer (Fig. 2),
wherein the second layer and the third layer are separate layers (as seen in Fig. 2) [0029],
wherein the second layer and third layer are bonded or adhered together via a stitching [0034],
wherein the second layer and the third layer are combined in a single layer (when the layers stitched together being considered a single layer [0034])
Regarding claims 10-12, Dunbar teaches the formation of a pocket, but fails to explicitly teach the second layer further comprises a pocket, and wherein at least a portion of the third layer is positioned inside the pocket, or wherein the third layer comprises a plurality of layers.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the device construction to have the second layer comprise the pocket as Dunbar teaches a plurality of configurations for layers around the pocket [0028].
Regarding the plurality of third layers, the mere duplication of parts, without any new or unexpected results, is within the ambit of one of ordinary skill in the art. See In re Harza, 124 USPQ 378 (CCPA 1960) (see MPEP § 2144.04).
Regarding claim 13, Dunbar teaches the first layer (116), the second layer (204), the third layer (206) may be constructed of cotton [0027, 0031, 0032], and the fourth layer (208) may comprise a fabric [0033], thereby teaching a material of each of the one or more layers is same or different, and is independently selected from a fabric, a natural yarn, a synthetic yarn, a cotton, a silk, a polyester, a spandex, a rubber, a plastic, a metal, a merino wool, a nylon, a polypropylene, a rayon, a linen, a spandex, a bamboo, Gore-Tex, X-static, a Tencel, or combinations thereof.
Regarding claim 14, Dunbar further teaches the moisture-wicking materials is selected from a fabric [0027].
Regarding claim 15, Dunbar further teaches a shape of the second layer (204) is different from a shape of the third layer (teaching different shapes [0033]).
Regarding claim 17, Dunbar in view of Naylor teaches the device of claim 1 which requires the third layer to extend laterally from the first leg opening to the second leg opening and the second layer extends only partially laterally, and is therefore considered to teach a size of the second layer is smaller than a size of the third layer such that the third layer extends beyond the second layer.
Regarding claim 18, Dunbar further teaches each of the first to fourth layers has a first shape, including a front portion having a first width, and a rear portion having a second width, wherein the front portion and the rear portion dimensions are connected by a middle portion having a third width, wherein the third width is narrower than each of the first width and the second width as seen in Dunbar Annotated Fig. 1C, below. The third width being at the inflection point of the curve created by the leg opening and therefore the narrowest point.
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Dunbar Annotated Fig. 1C
Regarding claims 19 and 20, Dunbar in view of Naylor in the embodiment of claim 1 fail to teach each of the first to fourth layers has a complex shape, wherein the complex shape comprises a first shape portion connected to a second shape portion, wherein the first shape portion comprises a front portion having a first width, and a rear portion having a second width, wherein the front portion and the rear portion are connected by a middle portion having a third width, wherein the third width is a narrower width than each of the first width and the second width, and wherein the second shape portion comprises a trapezoidal shape tapering from a rear edge of the first shape portion to a rear edge of each of the first to fourth layers.
Dunbar teaches an alternate embodiment (Fig. 7C) comprising a plurality of layers, wherein the layers have a complex shape, wherein the complex shape comprises a first shape portion connected to a second shape portion, wherein the first shape portion comprises a front portion having a first width, and a rear portion having a second width, wherein the front portion and the rear portion are connected by a middle portion having a third width, wherein the third width is a narrower width than each of the first width and the second width, and wherein the second shape portion comprises a trapezoidal shape tapering from a rear edge of the first shape portion to a rear edge of the layers (Dunbar Annotated Fig. 7C). Dunbar further teaches the plurality of layers may possess the same shape [0033], wherein each of the first to fourth layers is arranged such that the first shape portion extends towards a front of the garment and the second shape portion extends towards a rear of the garment (Dunbar Annotated Fig. 7C).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the layer shapes of the crotch section of claim 1 with those of the alternate embodiment of Dunbar to provide options allowing for the balance of liquid absorption and comfort of the garment [Dunbar 0037].
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Dunbar Annotated Fig. 7C
Regarding claim 22, Dunbar further teaches the first fourth layer (208) comprises a waterproof material (the layer being moisture-impermeable [0033]).
Regarding claim 23, Dunbar in view of Naylor in the device of claim 5 teaches a plurality of bonding methods [0025], but fails to explicitly teach the stitching, the knitting, the adhesive layer or the bonding tape avoids extending through the moisture-wicking material.
Dunbar teaches the top layer of the pad (202) may be moisture-wicking [0029]. As the pad is removable, it is considered to fulfill the requirement wherein the stitching, the knitting, the adhesive layer or the bonding tape avoids extending through the moisture-wicking material.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the device of claim 1 to prevent the bonding agent from extending through the moisture-wicking material in order to control fluid flow characteristics.
Regarding claim 27, Dunbar fails to teach an elastic edge portion surrounds a waistband portion of the body.
Naylor further teaches an elastic edge (at least 26, 27) which surrounds a waistband portion of the body [0014].
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the device of claim 1 to incorporate the elastomeric waistband of Naylor to allow the user to customize comfort and fit [Naylor 0014].
Regarding claim 28, Dunbar in view of Naylor in the embodiment of claim 1 teaches the use of bonding to attach the layers of the device [0025] and stitches to attach the pad [0030], and is therefore considered to teach the first layer is bonded or adhered to the second layer along outer edges of the first and second layers via a stitching, a knitting, an adhesive layer or a bonding tape.
Regarding claim 29, Dunbar further teaches a garment (Fig. 4B) wherein the crotch area is bonded to the body via a stitching (406, 408, and 410), and wherein the stitching extends beyond the crotch area to a waistband edge of the body.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the bonding of claim 1 with the stitching of Dunbar to improve comfort and leak protection [Dunbar 0034].
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Dunbar Annotated Fig. 4B
Regarding claim 163, by teachings the device of claim 1, Dunbar in view of Naylor is considered to teach the method of claim 163, said method being to cause the garment of claim 1 to be constructed.
Claim(s) 24-26 are rejected under 35 U.S.C. 103 as being unpatentable over Dunbar in view of Naylor and further in view of US 20150157513 A1 (Hovey).
Regarding claim 24, Dunbar fails to teach each of the two leg openings is a free cut leg opening.
Hovey teaches a garment (Fig. 4A) wherein a finished seam can be made, leaving no raw fabric edges exposed [0030]. As Hovey teaches finishing the edge with seam is one option, the alternative would be to have an unfinished edge and is therefore considered to teach each of the two leg openings is a free cut leg opening.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the leg openings of Dunbar in view of Naylor with the unfinished edge of Hovey as it would be obvious to try when choosing from the two possibilities of having a finished or unfinished edge, providing the expected result of layers being joined together MPEP 2143(I).
Regarding claims 25 and 26, Dunbar in view of Naylor fails to teach an elastic edge surrounds each of the two leg openings, and wherein an edge of each of the two leg openings is folded inwards to enclose the elastic edge.
Hovey teaches a garment (Fig. 4A) wherein a finished seam encloses an elastic edge [0028] which surrounds each of the two leg openings (130), and wherein an edge of each of the two leg openings is folded inwards to enclose the elastic edge (through formation of a finished seam [0030].
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the leg openings of Dunbar in view of Naylor to incorporate the elastic edge enclosed in a finished seam as taught by Hovey to provide a more comfortable garment [Hovey 0030].
Claim(s) 30 is rejected under 35 U.S.C. 103 as being unpatentable over Dunbar in view of Naylor, and further in view of US 20060178652 A1 (Miller).
Regarding claim 30, Dunbar in view of Naylor fails to teach a grain of the moisture-wicking material is arranged to comprise longitudinal ridges extending from a front portion to a rear portion of the at least one of the first to fourth layers comprising the moisture-wicking material.
Miller teaches an absorbent article (Fig. 10A) comprising a layer (147) designed to control liquid flow and move liquid in a desired direction, where longitudinal ridges (147a) extend from a front portion to a rear portion (10A) and is therefore considered to teach a grain of the moisture-wicking material is arranged to comprise longitudinal ridges extending from a front portion to a rear portion.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the moisture-wicking layer of Dunbar in view of Naylor to include the ridges of Miller to direct liquid over the length of the absorbent area [Miller 0029], allowing collected fluids to be more rapidly directed across the absorbent surface.
Claim(s) 31 and 168 are rejected under 35 U.S.C. 103 as being unpatentable over Dunbar in view of Naylor, and further in view of US 10888470 B2 (Riha-Scott et al.).
Regarding claims 31 and 168, Dunbar in view of Naylor fails to teach a volume capacity of the one or more layers comprising the moisture-wicking material is in a range of from about 50 mI to about 300 ml, or between about 40 ml to about 300 ml.
Riha-Scott teaches an absorbent garment (Abstract) comprising an absorbent pad with a wicking layer, said layer having a fluid capacity of 30 ml to 500 ml (Claim 1) and is therefore considered to teach volume capacity of the one or more layers comprising the moisture-wicking material is in a range of from about 50 mI to about 300 ml, and between about 40 ml to about 300 ml.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the undisclosed collection volume of Dunbar in view of Naylor with the collection range of Riha-Scott to provide a variety of styles with varied capacities (Col. 12: ll. 40-56), thereby allowing selection of a garment based on user needs.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness. See MPEP § 2144.05.I.
Conclusion
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 HANS KALIHER whose telephone number is (303)297-4453. The examiner can normally be reached Monday-Friday 08:00-05:00 MT.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sarah Al-Hashimi can be reached at (571) 272-7159. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/HANS KALIHER/ Examiner, Art Unit 3781
/SARAH AL HASHIMI/ Supervisory Patent Examiner, Art Unit 3781