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 .
In light of the amendments to the claims filed 06/30/2026 in which claim 1 was amended and claims 10-11 were cancelled, claims 1, 3, 5, 7-13, 16-17, 21, 24, 38, 43, and 45-48 are pending in the instant application.
In light of the response to the restriction requirement filed 09/03/2024 in which claims 13-14, 16-17, 20-21, 24-25, 28, and 38-39 were withdrawn, claims 1, 3, 5, 7-12, 43, and 45-48 are examined on the merits herein.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 06/30/2026 has been entered.
Election/Restrictions
The election by original presentation in the Final Rejection filed 05/02/2025 has been reconsidered. The withdrawal of claim 45 is withdrawn and claim 45 is examined on the merits herein as noted above.
Priority
The instant application is a 371 of PCT/IB2020/058692 filed 09/18/2020 which claims priority to U.S. Provisional Applications 62/902,038 and 62/902,051 filed on 09/18/2019.
Claims 1, 3, 5, 7-13, 16-17, 21, 24, 38, 43, and 45-48 receive priority to the prior-filed application, filed on 09/18/2019.
Response to Arguments
Rejections of the Claims under 35 U.S.C. 103
Applicant's arguments filed 06/30/2026 have been fully considered but they are not persuasive and/or wherein the claim amendments have necessitated new grounds of rejection.
Regarding claim 1, applicant asserts on pg. 6-7 that the prior art to Dutkiewicz, Guidotti, and Hopkins fail to teach or suggest the newly added limitation: the multi-layer nonwoven material is devoid of superabsorbent polymer.
In response to the applicant’s argument, the examiner respectfully notes that none of the prior art stated were used in the previous Office Action filed 03/31/2026 to read on the newly added limitation. The amendments to the claim have necessitated new grounds of rejection in view of US/2016/00040337 A1 to Dutkiewicz (different from the Dutkiewicz prior art previously relied upon for the independent claim).
Regarding claim 1, applicant asserts on pg. 8 that multi-layer nonwoven materials devoid of superabsorbent polymer provide unexpected results as compared to multi-layer nonwoven materials that comprise superabsorbent polymer.
In response to the applicant’s argument, the examiner respectfully notes that the applicant has failed to establish at least that the results are unexpected and significant and has therefore failed to meet their required burden. The burden is on the applicant to provide direct and indirect comparative tests, explain the data, and establish that the results are unexpected and significant. See MPEP 716.02.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 45 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 45 fails to limit claim 1, which it is dependent upon, by only requiring that the multi-layer nonwoven not include superabsorbent polymer. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 3, 5, 9, 12, 43, and 45-47 are rejected under 35 U.S.C. 103 as being unpatentable over US/2016/0040337 A1 to Dutkiewicz in view of U.S. Patent 5,741,241 A to Guidotti.
Regarding claim 1, Dutkiewicz discloses a multi-layer nonwoven material (para. 0047; para. 0122; Fig. 2C, multi-layer nonwoven 230) comprising:
a first layer comprising a blend of cellulose fibers and bicomponent fibers (para. 0122, first layer 232 can comprise a mixture of cellulosic and synthetic fibers; para. 0074-0087, synthetic fibers can be mono-, bi-, or multi-component fibers; Fig. 2C, first layer 232), wherein fibers are present in the first layer in an amount ranging from 70-100 weight % of the layer (para. 0124) and the cellulose fibers are present in either of 0-50 weight % of the layer or 50-100 weight % of the layer (para. 0060); and
a second layer comprising a blend of fine hardwood cellulose fibers and bicomponent fibers (para. 0122, second layer 236 can comprise a mixture of cellulosic and synthetic fibers; para. 0058-0061, hardwood cellulose fibers can be eucalyptus; para. 0074-0087, synthetic fibers can be mono-, bi-, or multi-component fibers; Fig. 2C, second layer 236),
at least a portion of the first layer or at least a portion of the second layer is coated with a binder (para. 0122, binder coating on first layer 232; para. 0124-0125, each outer layer can be coated with binder),
the multi-layer nonwoven material is devoid of superabsorbent polymer (para. 0110-0112, layers can comprise superabsorbent polymer [does not require the material to comprise superabsorbent polymer], nonwoven material can contain from about 0 to about 80 weight % superabsorbent polymer), and
the first layer is the top layer of the multi-layer nonwoven material (Fig. 2C, first layer 232 as top layer of nonwoven 230).
Dutkiewicz differs from the instantly claimed invention in that Dutkiewicz fails to explicitly disclose wherein the cellulose fibers are present in the first layer in an amount ranging from 20-70 gsm.
Dutkiewicz does disclose that the range of basis weights for the nonwoven and the composition by weight of the layers can be optimized based upon the end use application, desired properties, number of layers, raw materials, layer forming technology, adhesive parameters, and the like of the nonwoven (para. 0123). It appears that one of ordinary skill in the art would have had a reasonable expectation of success in modifying the Dutkiewicz device to have cellulose fibers in the first layer within the claimed range, as it involves only adjusting the dimension of a component disclosed to require adjustment. Therefore, it would have been obvious to one having ordinary skill in the art at the time of the invention to modify the device of Dutkiewicz to make the amount of cellulose fibers in the first layer be 20-70 gsm as a matter of routine optimization since it has been held that “where 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." See MPEP 2144.05(II). Further, the applicant has failed to provide criticality for this range in the specification (para. 0100, the first layer “can” include any of a range of cellulose fibers).
Further, Dutkiewicz differs from the instantly claimed invention in that Dutkiewicz fails to disclose that the fine hardwood cellulose fibers of the second layer are finer than the cellulose fibers of the first layer.
Guidotti discloses an absorbent comprising fine cellulose fibers in a second layer that are finer than the cellulose fibers of the first layer (col. 4:31-64; col. 5:35-54; col. 6:3-5; Fig. 2, first layer 16 and second layer 17(a,b)), this arrangement of fineness allowing for liquid to be transported from the coarser capillaries to the finer capillaries (col. 5:36-65).
It would be considered obvious to one of ordinary skill in the art before the effective filing date of the instant application to modify the fiber layers of Dutkiewicz to have increased fineness from an upper to a lower layer as taught by Guidotti, because Guidotti discloses that fibers with increased fineness provide a denser structure with finer capillaries than coarse fibers, and that this arrangement of fineness allows for liquid to be transported from the coarser capillaries to the finer capillaries which counteracts rewet of the skin (col. 5:36-65) in that capillary transport does not occur from finer to coarser capillaries.
Regarding the limitation “wherein the fine cellulose fibers comprise a pulp fiber coarseness ranging from 4.2 mg/100m to 14.08 mg/100m”, as Dutkiewicz discloses the use of eucalyptus pulp (para. 0058-0061, hardwood cellulose fibers can be eucalyptus) and the applicant discloses that eucalyptus pulp has a pulp fiber coarseness within the claimed range (para. 0056), it follows naturally that Dutkiewicz discloses fine cellulose fibers having a pulp fiber coarseness within the claimed range. As supported in MPEP 2112.01, “Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established…When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not."
Regarding claim 3, the cited prior art suggest the invention of claim 1.
The combination of the cited prior art suggests all aspects of the claimed invention with the exception of the nonwoven material having an effective acquisition time of about 15 seconds or less. While the combination of the cited prior art does not suggest an effective acquisition time with respect to the embodiment relied upon in the rejection, Dutkiewicz teaches that acquisition time is a desired property in a nonwoven material (para. 0163-0169; Fig. 4; Fig. 6-7; none of which show the embodiment relied upon in the rejection). Acquisition time is concerned with improving absorption ability, and it is known in the art to improve absorption ability.
It would therefore have been considered obvious to one of ordinary skill in the art before the effective filing date of the instant application to provide the nonwoven material of the cited prior art with an effective acquisition time of about 15 seconds or less to achieve the predictable result of improving the intake time of the article to reduce leakage and to allow for longer use of the article.
Regarding claim 5, the cited prior art suggest the invention of claim 1.
The combination of the cited prior art suggests all aspects of the claimed invention with the exception of the nonwoven material having a wicking distance of at least 140 mm. While the combination of the cited prior art does not suggest a wicking distance with respect to the embodiment relied upon in the rejection, Dutkiewicz teaches that wicking distance [stain length] is a desired property in a nonwoven material (0170-0174). Wicking distance is concerned with improving liquid distribution (para. 0174), and it is known in the art to improve liquid distribution.
It would therefore have been considered obvious to one of ordinary skill in the art before the effective filing date of the instant application to provide the nonwoven material of the cited prior art with a wicking distance of at least 140 mm to achieve the predictable result of improving the distribution of liquid with the article.
Regarding claim 9, the cited prior art suggest the invention of claim 1. Dutkiewicz further discloses: wherein the fine cellulose fibers include eucalyptus pulp (para. 0058-0061, hardwood cellulose fibers can be eucalyptus).
Regarding claim 12, the cited prior art suggest the invention of claim 1. Dutkiewicz further discloses: an absorbent article comprising the multi-layer nonwoven material of claim 1 (para. 0150-0151).
Regarding claim 43, the cited prior art suggest the invention of claim 1. Dutkiewicz further discloses: wherein at least a portion of the first layer and at least a portion of the second layer is coated with the binder (para. 0122, binder coating on first layer 232; para. 0124-0125, each outer layer can be coated with binder).
Regarding claim 45, the cited prior art suggest the invention of claim 1. Dutkiewicz further discloses: wherein the multi-layer nonwoven material does not include superabsorbent polymer (para. 0110-0112, layers can comprise superabsorbent polymer [does not require the material to comprise superabsorbent polymer], nonwoven material can contain from about 0 to about 80 weight % superabsorbent polymer).
Regarding claim 46, the cited prior art suggest the invention of claim 1. Dutkiewicz further discloses: wherein fibers are present in the first layer in an amount ranging from 70-100 weight % of the layer (para. 0124) and the synthetic bicomponent fibers are present in either of 0-50 weight % of the layer or 50-100 weight % of the layer (para. 0082; para. 0074-0087, synthetic fibers can be mono-, bi-, or multi-component fibers).
The prior art differs from the instantly claimed invention in that the prior art fails to explicitly disclose wherein the synthetic fibers are present in the first layer in an amount ranging from 15-40 gsm.
Dutkiewicz does disclose that the range of basis weights for the nonwoven and the composition by weight of the layers can be optimized based upon the end use application, desired properties, number of layers, raw materials, layer forming technology, adhesive parameters, and the like of the nonwoven (para. 0123). It appears that one of ordinary skill in the art would have had a reasonable expectation of success in modifying the Dutkiewicz device to have cellulose fibers in the first layer within the claimed range, as it involves only adjusting the dimension of a component disclosed to require adjustment. Therefore, it would have been obvious to one having ordinary skill in the art at the time of the invention to modify the device of Dutkiewicz to make the amount of synthetic fibers in the first layer be 15-40 gsm as a matter of routine optimization since it has been held that “where 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." See MPEP 2144.05(II). Further, the applicant has failed to provide criticality for this range in the specification (para. 0100, the first layer “can” include any of a range of synthetic fibers).
Regarding claim 47, the cited prior art suggest the invention of claim 1. Dutkiewicz further discloses: wherein fibers are present in the second layer in an amount ranging from 70-100 weight % of the layer (para. 0124) and the synthetic bicomponent fibers are present in either of 0-50 weight % of the layer or 50-100 weight % of the layer (para. 0082; para. 0074-0087, synthetic fibers can be mono-, bi-, or multi-component fibers).
The prior art differs from the instantly claimed invention in that the prior art fails to explicitly disclose wherein the synthetic fibers are present in the second layer in an amount ranging from 15-40 gsm.
Dutkiewicz does disclose that the range of basis weights for the nonwoven and the composition by weight of the layers can be optimized based upon the end use application, desired properties, number of layers, raw materials, layer forming technology, adhesive parameters, and the like of the nonwoven (para. 0123). It appears that one of ordinary skill in the art would have had a reasonable expectation of success in modifying the Dutkiewicz device to have cellulose fibers in the first layer within the claimed range, as it involves only adjusting the dimension of a component disclosed to require adjustment. Therefore, it would have been obvious to one having ordinary skill in the art at the time of the invention to modify the device of Dutkiewicz to make the amount of synthetic fibers in the first layer be 15-40 gsm as a matter of routine optimization since it has been held that “where 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." See MPEP 2144.05(II). Further, the applicant has failed to provide criticality for this range in the specification (para. 0102, the second layer “can” include any of a range of synthetic fibers).
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Dutkiewicz and Guidotti as applied above, and further in view of WO/2016/115181 A1 to Dutkiewicz (hereinafter referred to as Dutkiewicz ‘181).
Regarding claim 7, the cited prior art suggest the invention of claim 1.
The combination of the cited prior art suggests all aspects of the claimed invention with the exception of the nonwoven material having a rewet value of about 0.05 g. or less.
While the combination of the cited prior art does not suggest a rewet value with respect to the embodiment relied upon in the rejection, Dutkiewicz ‘181 teaches that rewet value is a desired property in a nonwoven material (pg. 25 ln. 27-34 and pg. 26 ln. 1-5; pg. 37 ln. 32-34 and pg. 38 ln. 1-9). Rewet value is concerned with improving fluid retention, and it is known in the art to improve fluid retention.
It would therefore have been considered obvious to one of ordinary skill in the art before the effective filing date of the instant application to provide the nonwoven material of the cited prior art with a rewet value of about 0.05 g. or less to achieve the predictable result of improving the rewet value to make the top of the article feel dryer and more comfortable to the wearer.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Dutkiewicz and Guidotti as applied above, and further in view of US/2015/065974 A1 to Michiels.
Regarding claim 8, the combination of the cited prior art suggests the invention of claim 1.
The combination of the cited prior art suggests all aspects of the claimed invention with the exception of the nonwoven material having a retention before leak of at least 3.0 g.
While the combination of the cited prior art does not suggest a retention before leak with respect to the embodiment relied upon in the rejection, Michiels teaches that retention before leak is a desired property in a nonwoven absorbent (para. 0008 ln. 3-6; para. 0017 ln. 1-3; para. 0165-0175). Retention before leak is concerned with improved liquid retention, and it is known in the art to improve liquid retention.
It would therefore have been considered obvious to one of ordinary skill in the art before the effective filing date of the instant application in view of Michiels to provide the nonwoven material of the combination of the cited prior art with a retention before leak of 3.0 g. to achieve the predictable result of improving the retention to provide increased usage time of the article without a user having to deal with leakage.
Claim 48 is rejected under 35 U.S.C. 103 as being unpatentable over Dutkiewicz and Guidotti as applied above, and further in view of US/2003/0208175 A1 to Gross.
Regarding claim 48, the cited prior art suggest the invention of claim 1.
The prior art differ from the instantly claimed invention in that the prior art fail to explicitly disclose wherein the fine hardwood cellulose fibers comprise a pulp fiber coarseness of 12.38 mg/100 m, 13.08 mg/100 m, 13.10 mg/100 m, or 14.08 mg/100 m.
Gross discloses a multi-layer absorbent that may use eucalyptus, birch, oak, or beech hardwood fibers (para. 0089; Fig. 1, multi-layer absorbent 15 comprising wicking layer 13). It would have been obvious to one having ordinary skill in the art at the time the invention was made to use birch, oak, or beech hardwood fibers as disclosed by Gross in the multi-layer nonwoven suggested by the prior art, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. See MPEP § 2144.07.
Regarding the limitation “wherein the fine cellulose fibers comprise a pulp fiber coarseness ranging from 4.2 mg/100m to 14.08 mg/100m”, as Gross discloses the use of birch, oak, or beech fibers (para. 0089) and the applicant discloses that red alder, paper birch, American beech, or white oak fibers have pulp fiber coarseness within the claimed values (para. 0056), it follows naturally that Gross discloses fine cellulose fibers having a pulp fiber coarseness within the claimed values. As supported in MPEP 2112.01, “Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established…When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not."
Further, there is no evidence of record that establishes that changing the hardwood cellulose fiber to one having any of the pulp fiber coarseness values claimed would result in a difference in function of the device of the combination of the cited prior art. A person having ordinary skill in the art, being faced with modifying the hardwood cellulose fiber, would have a reasonable expectation of success in making such a modification and it appears the device would function as intended utilizing a different cellulose fiber (Dutkiewicz: para. 0058-0061). Lastly, applicant has not disclosed that the claimed values solve any stated problem, indicating that the pulp fiber coarseness can be simply within the claimed values, and offering other acceptable values (specification para. 0056) and therefore there appears to be no criticality placed on the values as claimed such that they produce unexpected results.
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the fine hardwood cellulose fibers to be fibers that comprise any of the pulp fiber coarseness values as claimed as an obvious matter of design choice within the skill of the art.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Linnae Raymond whose telephone number is (571)272-6894. The examiner can normally be reached M-F 8:00am to 4:00pm.
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/Linnae E. Raymond/Examiner, Art Unit 3781
/LESLIE R DEAK/Primary Examiner, Art Unit 3799 9 July 2026
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