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 Notes
Claims 1 and 3-20 are currently pending. Claims 1, 18, and 20 have been amended.
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 and 3-17 are rejected under 35 U.S.C. 103 as being unpatentable over Mizutani et al. (US 2012/0196091) and further in view of Phan (US 6,200,419).
Regarding claims 1 and 3, Mizutani discloses a non-embossed non-woven fibrous structure (0006) comprising a plurality of crests (6) and troughs (7). Troughs (7) being a compacted perimeter region on either side (i.e., partially surrounding) the first crests (6a) which is an uncompacted region (Fig. 1). Mizutani teaches the density of the troughs having a higher density value than the uncompacted density of the crests (0027 and 0029), such that a density difference between the crests (uncompacted region) and trough (compacted region) is at least 1% (Table 1).
Mizutani further teaches a height different between the crests (6a) and troughs (7) of 0.7 to 2.5 mm (0025), overlapping the claimed at least 2 mm.
Mizutani does not teach an average overall density of non-woven article.
Phan, in the analogous field of fibrous structure articles (column 1, lines 17-21) discloses a paper web having a bulk density of 0.12 g/cc or less (column 7, lines 5-10), overlapping the claimed density of less than 0.65 g/cc.
A person of ordinary skill in the art before the effective filing date of the claimed invention would have found it obvious for the article of Mizutani to have a bulk density of 0.12 g/cc or less as taught by Phan, to provide a consumer paper product with good bulk and softness properties (column 2, lines 60-63).
Mizutani and Phan do not teach the density(s) measured according to the µCT Compacted/Compressed Fibrous Structure Article Test Method however, an overlapping range would be expected as patentability is not based upon method of measurement but whether or not the property would have been obvious in view of the prior art.
Regarding the overlapping ranges discussed above, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention 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. MPEP 2144.05.
Regarding claims 4-5, Mizutani teaches the stack comprising fibers (0025).
Regarding claims 6-7, Mizutani does not teach the fibers comprising wood pulp fibers.
Phan teaches wood pulp fibers (column 9, lines 55-60).
A person of ordinary skill in the art before the effective filing date of the claimed invention would have found it obvious for the fibers of Mizutani to include wood pulp as taught by Phan, providing an absorbent paper web (column 2, lines 40-43).
Regarding claims 8-10, 12-14, and 17, Mizutani does not expressly teach the fibrous article being wet-laid, through-air-dried, ATMOS or NTT fibrous structures however, these are product by process limitations. The above arguments establish a rationale tending to show the claimed product is the same as what is taught by the prior art. “[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.
Regarding claims 11 and 15-16, Mizutani does not teach the fibrous structure being creped through-air-dried, belt creped, or fabric creped.
Phan teaches the paper web being creped (column 5, lines 35-40).
A person of ordinary skill in the art before the effective filing date of the claimed invention would have found it obvious to crepe the structure of Mizutani, as taught by Phan, as creping improves softness and flexibility of the web (column 2, lines 35-40).
Phan does not teach through-air-dried, belt, or fabric creped however, these are product by process limitations. The above arguments establish a rationale tending to show the claimed product is the same as what is taught by the prior art. “[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.
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Mizutani in view of Phan as applied to claim 1 above, and further in view of Ward et al. (US 2005/0022955).
Regarding claim 18, modified Mizutani discloses the limitations of claim 1 as discussed above. Mizutani does not teach the article comprising an ingredient selected from antibacterial agents, antimicrobial agents, odor controlling agents, odor masking agents, perfumes, dry soap particles, surfactants, surface softening agents, lotions, polishing agents, dusting agents and mixtures thereof.
Ward, in the analogous field of fibrous tissue articles (0007), teaches a tissue comprising antibacterial or antiviral agents (0012).
A person of ordinary skill in the art before the effective filing date of the claimed invention would have found it obvious for the articles of Mizutani to include an antibacterial agent as taught by Ward, to kill or slow the reproduction of bacterial/viruses to promote users health (0012).
Claims 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over Mizutani in view of Phan as applied to claim 1 above, and further in view of Allwein et al. (US 6,510,945).
Regarding claims 19-20, modified Mizutani discloses the limitations of claim 1 as discussed above. Mizutani does not teach the article comprising a tab, which is machine-generated.
Allwein, in the analogous field of fibrous articles (column 1, lines 5-10), teaches a package comprising tabs (30) to form a seam (26) (column 4, lines 55-60).
A person of ordinary skill in the art before the effective filing date of the claimed invention would have found it obvious for the article of Mizutani to include tabs, as taught by Allwein, to provide an easy-open package (column 4, lines 60-64).
Allwein does not expressly teach the tabs being machine-generated however, this includes product by process language. The above arguments establish a rationale tending to show the claimed product is the same as what is taught by the prior art. “[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.
Response to Arguments
Applicant’s amendments field 12/09/2025 have been entered. Accordingly, the 35 U.S.C. 112(b) rejections of claims 18 and 20 are withdrawn.
Applicant’s arguments have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
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 ALICIA WEYDEMEYER whose telephone number is (571)270-1727. The examiner can normally be reached M-Th 9-4.
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/ALICIA J WEYDEMEYER/Primary Examiner, Art Unit 1781
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