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 .
Withdrawn Rejection
The 35 U.S.C. §112, 2nd paragraph), rejection(s) of claims 17, 30, made of record in the office action mailed on 05/21/2025, page 2 have been withdrawn due to Applicant’s amendment in the response filed on 08/19/2025.
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 6 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 6 which recites, “third and fourth layers of the set of layers are connected by lamination” fails to further limit from the claim which it depends on, claim 1 already recites this limitation third line from the bottom. 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
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.
Claim(s) 1-3, 6, 8, 13, 16-17, 19, 26, 28-30 and 35 are rejected under 35 U.S.C. 103 as being unpatentable over Borkovetz et al. (WO 2021/126150).
Regarding claims 1-3, 6, 8, 13, 35 Borkovetz discloses absorbent article, such as, a garment-like absorbent article, can have a front region, a back region, and a crotch region extending between and interconnecting the front region and the back region. Each of the front region and the back region can have an elastic material (abstract), see figure 1. Borkovetz discloses the absorbent core 56 can generally be any single layer structure or combination of layer components, which can demonstrate some level of compressibility, conformability, be non-irritating to the wearer's skin, and capable of absorbing and retaining liquids and other body exudates. In various embodiments, the absorbent core 56 can be formed from a variety of different materials and can contain any number of desired layers. For example, the absorbent core 56 can include one or more layers (e.g., two layers) of absorbent web material of cellulosic fibers (e.g., wood pulp fibers), other natural fibers, synthetic fibers, woven or nonwoven sheets, scrim netting, or other stabilizing structures, superabsorbent material, binder materials, surfactants, selected hydrophobic and hydrophilic materials, pigments, lotions, odor control agents or the like, as well as combinations thereof. In an embodiment, the absorbent web material can include a matrix of cellulosic fluff and can also include superabsorbent material. The cellulosic fluff can comprise a blend of wood pulp fluff (page 16, lines 9-25). The topsheet layer 52 can be at least partially hydrophilic. In various embodiments, a portion of the topsheet layer 52 can be hydrophilic and a portion of the topsheet layer 52 can be hydrophobic (page 13, lines 6-10). The elastic material, 134 and 144, can be an elastomeric polymeric film layer. The elastomeric polymeric film layer can be elastomeric in at least the transverse direction of the absorbent article 10 and can extend from the first side edge, 24 or 34, to the second side edge, 26 or 36, of the elastomeric panels, 130 or 140, respectively (page 21). The back region 30 can further have a leg elastic 190. In various embodiments, the back region 30 can have 1, 2, 3, 4, or 5 leg elastics 190. Each leg elastic 190 can be a single strand, ribbon, or strip of elastomeric material (page 26).
However, the recitation in the claims that the clothing absorbing structure is “for absorbing body fluids” is merely an intended use. Applicants attention is drawn to MPEP 2111.02 which states that intended use statements must be evaluated to determine whether the intended use results in a structural difference between the claimed invention and the prior art. Only if such structural difference exists, does the recitation serve to limit the claim. If the prior art structure is capable of performing the intended use, then it meets the claim.
It is the examiner’s position that the intended use recited in the present claims does not result in a structural difference between the presently claimed invention and the prior art and further that the prior art structure is capable of performing the intended use. Given that Borkovetz disclose clothing absorbing structure as presently claimed, it is clear that the absorbing structure of Borkovetz would be capable of performing the intended use, i.e. absorbing fluids, presently claimed as required in the above cited portion of the MPEP.
With respect to the third and fourth layers are connected by lamination, Any difference imparted by product by process limitations would have been obvious to one having ordinary skill in the art at the time of the invention was made because where the examiner has found a substantially similar product as in the applied prior art the burden of proof is shifted to the applicant to establish that their product is patentably distinct not the examiner to show the same process of making, see In re Brown, 173 USPQ 685, In re Fessmann, 180 USPQ 324, In re Spada, 15 USPQ2d 1655, In re Fitzgerald, 205 USPQ 594 and MPEP 2113.
Regarding claim 16, Change in size and shape is not patently distinct over the prior art absent persuasive evidence that the particular configuration of the claimed invention is significant. See In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955); In re Rinehart, 531 F.2d 1048, 189 USPQ 143 (CCPA 1976); In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966). MPEP 2144.04[R-1]
Regarding claim 17, As Borkovetz discloses first layer comprising synthetic fibers as presently claimed as stated above, it therefore would be obvious that mass per unit area would intrinsically be in the range of 130-150 g/cc.
Regarding claim 19, with respect to the loop length, thickness Change in size and shape is not patently distinct over the prior art absent persuasive evidence that the particular configuration of the claimed invention is significant. See In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955); In re Rinehart, 531 F.2d 1048, 189 USPQ 143 (CCPA 1976); In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966). MPEP 2144.04[R-1]. As Borkovetz discloses second layer comprising hydrophilic and hydrophobic fibers as presently claimed as stated above, it therefore would be obvious that mass per unit area would intrinsically be in the range of 225-245 g/cc.
Regarding claims 26, 28 and 29, As Borkovetz discloses fourth layer comprising a polyester or polyurethane as presently claimed, it therefore would be obvious that fourth layer would intrinsically have the claimed density and melting point. With respect to thickness limitation, Change in size and shape is not patently distinct over the prior art absent persuasive evidence that the particular configuration of the claimed invention is significant. See In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955); In re Rinehart, 531 F.2d 1048, 189 USPQ 143 (CCPA 1976); In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966). MPEP 2144.04[R-1].
Regarding claim 30, with respect to the limitation of barrier strip is thermally bonded for 1.5-3 mins and is resistant to approximately 8 water columns and washes up to 60C. Any difference imparted by product by process limitations would have been obvious to one having ordinary skill in the art at the time of the invention was made because where the examiner has found a substantially similar product as in the applied prior art the burden of proof is shifted to the applicant to establish that their product is patentably distinct not the examiner to show the same process of making, see In re Brown, 173 USPQ 685, In re Fessmann, 180 USPQ 324, In re Spada, 15 USPQ2d 1655, In re Fitzgerald, 205 USPQ 594 and MPEP 2113.
Claim(s) 10-11, 14-15 are rejected under 35 U.S.C. 103 as being unpatentable over Borkovetz et al. (WO 2021/126150) as applied to claim 1, further in view of Lefebre et al. (WO 2006/061510).
Regarding claims 10-11, 14-15, Borkovetz fails to disclose that the first layer is formed by mixing polyamide and elastane in claimed amounts.
Whereas, Lefebre discloses textile complex comprising a first textile layer, a second textile layer and a substrate combining together said textile layers (abstract). Article of clothing, in particular an article of lingerie or sportswear, said article comprising at least one piece cut in a textile complex according to any one of claims 1 (claim 20). The textile layer comprises polyamide in 85 wt% and elastane in an amount of 15 wt%.
It would have been obvious to one of ordinary skill in the art at the time the application was filed to include polyamide in an amount of 85 wt% and elastane in an amount of 15% as taught by Lefebre in the first layer of Borkovetz motivated by the desire to have improved mechanical properties such as elasticity.
Claim(s) 20 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Borkovetz et al. (WO 2021/126150) as applied to claim 1, further in view of Fortier (US 2019/0246706).
Regarding claims 22 and 24, Borkovetz fails to disclose that the second layer rib structure comprises a yarn with 65% polyester, 35$ viscose and 3-5 wt% elastane with the claimed linear mass.
Whereas, Fortier discloses male garment (title). The present garment or part thereof may be made in a range of materials, including for example bamboo, rayon and combination thereof, viscose, viscose elastane, acrylic, polyester, micromodal fibers and combinations thereof (para 0023).
It would have been obvious to one of ordinary skill in the art at the time the application was filed to include viscose, polyester and elastane as taught by Fortier in the second layer of Borkovetz motivated by the desire to have improved ease of movement and comfort.
It would have been obvious to one of ordinary skill in the art at the time of the invention to choose the instantly claimed ranges of polyester, viscose and elastane through process optimization motivated by the desire to have improved ease of movement and comfort and would intrinsically have the claimed linear mass, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. See In re Boesch, 205 USPQ 215 (CCPA 1980) (MPEP 2144.05).
Claim(s) 24 and 25 are rejected under 35 U.S.C. 103 as being unpatentable over Borkovetz et al. (WO 2021/126150) as applied to claim 1, further in view of Toennessen et al. (CN 105705534).
Regarding claims 24-25, Borkovetz fails to disclose that the third layer us firned by a derivative of Italian terry comprising a combination of functionalized lyocell cottom with natural fibers and ammonia neutralizers in claimed loop length, thickness and mass per unit area.
Whereas, Toennessen discloses feminine hygiene absorbent article, having an average degree of sphericity (SPHT) can be obtained by spray polymerization of a monomer solution or suspension is 0.8 to 0.95 of water-absorbing polymer particles (abstract). The core layer material comprise natural fibers, cotton with functionalized lyocell and ammonia neutralizers (page 38 and page 9).
It would have been obvious to one of ordinary skill in the art at the time the application was filed to include natural fibers, cotton with functionalized lyocell and ammonia neutralizers as taught by Toennessen in the third layer of Borkovetz motivated by the desire to have highly breathable characteristics and desired regulating temperature of the fabric.
Claim(s) 31 is rejected under 35 U.S.C. 103 as being unpatentable over Borkovetz et al. (WO 2021/126150) as applied to claim 1, further in view of Taihe (CN 111516310).
Regarding claim 31, Borkovetz fails to disclose that third layer comprise carboxylic groups grafted on to the fiber.
Whereas, Taihe discloses thermal insulation protective clothing using complex fiber material comprises laminating flame-retardant outer layer, waterproof and breathable layer, thermal insulation layer and comfort layer from outside to inside to obtain thermal-insulation complex material and subjecting thermal-insulation complex material to cutting, stitching and ironing to obtain the product (abstract). The graft modification treatment of cotton fiber comprises dissolving 2,3-pyrazine dicarboxylic acid in water to obtain a solution, immersing cotton fiber in solution, adding a catalytic amount of concentrated sulfuric acid in drop wise manner under stirring, heating, filtering, washing using water and then drying to obtain carboxylic acid pyrazine grafted modified cotton fiber (see entire document).
It would have been obvious to one of ordinary skill in the art at the time the application was filed to include carboxylic groups grafted on to the fiber as taught by Taihe in the third layer of Borkovetz motivated by the desire to ensure thermal insulation performance and improved wearing comfort (see entire document).
Response to Arguments
Applicant’s arguments filed on 08/19/2025 have been fully considered, but they are not persuasive.
Applicant submits that these features, in combination, provide a structure that has properties that are directly pertinent to the objective technical problem to which the inventors directed their attention, namely, how to provide a washable, reusable absorbing structure that effectively reduces odors and prevents leakage. The combination of features recited in the invention defined by amended claim | now pending include that the claimed clothing item is washable and reusable, it maintains odor control and leak prevention after multiple washes, and it offers enhanced comfort through flexible knit construction while ensuring leak-proof sealing. The item is washable over 50 cycles at 40-60 °C.
The reason or motivation to modify the reference may often suggest what the inventor has done, but for a different purpose or to solve a different problem. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant. See, e.g., In re Kahn, 441 F.3d 977, 987, 78 USPQ2d 1329, 1336 (Fed.Cir. 2006); Cross Med. Prods., Inc. v. Medtronic Sofamor Danek, Inc., 424 F.3d 1293, 1323, 76 USPQ2d 1662,1685 (Fed. Cir. 2005); In re Linter, 458 F.2d 1013, 173 USPQ 560 (CCPA 1972) (discussed below); In re Dillon, 919 F.2d 688, 16 USPQ2d 1897 (Fed. Cir. 1990), cert. denied, 500 U.S. 904 (1991)
Applicant argues that Borkovetz describes a disposable article with a nonfibrous top sheet, which is unsuitable for repeated washing. There is no teaching or suggestion in Borkovetz of providing knit-based absorbent layers with rib knit fluid channels, nor of providing a lamination between a knit absorbent layer and a microporous membrane, nor of having a peripheral folded barrier strip forming a concavity for sealing. To the contrary, Borkovetz teaches away from using a knitted structure: As used herein, the term "nonwoven fabric” or "nonwoven web” refers herein to a web having a structure of individual fibers or threads which are interlaid, but not in an identifiable manner as in a knitted fabric.
However, it should be noted that nonwoven fabric or nonwoven web is one of many embodiments of how absorbent article is made. Borkovetz discloses absorbent article being made from spunbond web where the term “spunbond web” refers herein to a web containing small diameter substantially continuous fibers. The fibers are formed by extruding a molten thermoplastic material from a plurality of fine, usually circular, capillaries of a spinneret with the diameter of the extruded fibers then being rapidly reduced as by, for example, eductive drawing and/or other well-known spunbonding mechanisms (para 0032) and longitudinally directed side portions can be of a single or multi-layered construction. In various embodiments, the side portions can be adhesively or otherwise bonded laminates. In various embodiments, the side portions can be constructed of an upper fibrous nonwoven layer, such as a spunbond material, laminated to a bottom layer of a hydrophobic barrier film material (para 0051), where the absorbent article made from spun bonding would form rib-knit structure.
Conclusion
THIS ACTION IS MADE FINAL. 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 RONAK C PATEL whose telephone number is (571)270-1142. The examiner can normally be reached M-F 8:30AM-6:30PM (FLEX)
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/RONAK C PATEL/Primary Examiner, Art Unit 1788
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