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 .
Claim Objections
Claim 18 is objected to because the limitation “the at least a top layer (L1) and a bottom layer (L2)” should read “the at least top layer (L1) and bottom layer (L2)”.
Claim Interpretation
It is the Office’s position that the testing method for a material or structural property does not impart a patentable weight. The property is attributed to the material and structure, not the testing method. As such, a reference does not need to recite using the specific AUL test methods or absorption speed test methods to read on the claim language.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 13 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the enablement requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention.
Case law holds that applicant's specification must be "commensurately enabling [regarding the scope of the claims]" Ex parte Kung, 17 USPQ2d 1545, 1547 (Bd. Pat. App. Inter. 1989) otherwise undue experimentation would be involved in determining how to practice and use applicant's invention. Although the statute itself does not use the phrase "undue experimentation", it has been interpreted to require that the claimed invention be enabled so that any person skilled in the art can make and use the invention without undue experimentation as stated in Ex parte Forman, 230 USPQ 546, 547 (Bd. Pat. App. Inter. 1986) and in In re Wands, 8 USPQ2d 1400, 1404 (Fed. Cir. 1988).
Specifically, in In re Wands the Court set forth a non-exhaustive list of factors to be considered in determining whether undue experimentation would be involved in making and/or using the claimed invention. These factors include, but are not limited to:
(a) the breadth of the claims;
(b) the nature of the invention;
(c) the state of the prior art;
(d) the level of one of ordinary skill;
(e) the level of predictability in the art;
(f) the amount of direction provided by the inventor;
(g) the existence of working examples; and
(h) the quantity of experimentation needed to make or use the invention based on the content of the disclosure.
Regarding Claim 13, the specification does not provide enablement for an embodiment of the absorbent core with attachment zones forming channels that form at least two clusters of absorbent material circumscribed by said attachment zones, wherein the at least two clusters are spaced apart along a dimension parallel to the longitudinal axis, and where in the two or more clusters are connected by one or more attachment zones bridging between said clusters and extending substantially along said longitudinal axis (see Figs. 7 and 8) and also where the upper and bottom layer are joined at one or more bonding points positioned inboard of a perimeter of the absorbent core wherein said bonding points have an aspect ratio of less than 3 (see Figs. 1A-1C). Applicant’s specification does not appear to describe an embodiment where both sets of features are present, and one of ordinary skill in the art would not have found it obvious to combine the attachment zones forming channels with the discrete bonding points (Wands Factors D, F).
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-23 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites the limitation “a bottom layer (L2)” in both lines 7 and 10. It is unclear if the second recitation of “a bottom layer (L2)” is intended to refer to the same layer as the first recitation of “a bottom layer (L2)” or if this is intended to refer to a different layer. For the purpose of compact prosecution, this limitation is interpreted as referring to the same layer as the first recitation. Claims 2-23 are also rejected based on their dependency on Claim 1.
Claim 8 recites the limitations “a layered absorbent core” and “a top layer (L1)” in line 4, “a bottom layer (L2)” in line 5, and “a contact zone (Zc)” in lines 6-7. It is unclear if these limitations refer to the same features as those recited in Claim 1 or if these features are intended to indicate different layers from those recited in Claim 1. For the purpose of compact prosecution, these limitations are interpreted as referring to the same features as those claimed in Claim 1.
Claim 18 recites the limitation “an absorbent material (5)” in lines 2-3. It is unclear if this limitation refers to the same absorbent material as recited in Claim 1 or if this limitation is intended to refer to a different absorbent material. For the purpose of compact prosecution, this limitation is interpreted as referring to the same absorbent material as recited in Claim 1.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-4, 7, 8, 11, 14, 16-21, and 23 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Daniel et al (US 2020/0121521).
Regarding Claim 1, Daniel discloses an absorbent article (Fig. 16B; ¶ [0458]) comprising:
a liquid permeable topsheet (A, Fig. 16B; ¶ [0060, 0760, 0764]; the specific embodiment relied upon for this rejection is the embodiment of Example 9 disclosed in ¶ [0764], which has the structure disclosed ¶ [0760-0763] with a different SAP in the bottom layer),
a liquid impermeable backsheet (B, Fig. 16B; ¶ [0060]), and
an absorbent core (C, Fig. 16B; ¶ [0760-0764]) positioned between said topsheet (A, Fig. 16B) and said topsheet (B, Fig. 16B),
wherein the absorbent core (C, Fig. 16B) comprises an absorbent material, said absorbent material comprising a mixture, or blend, of cellulose fibers and superabsorbent polymers (cellulose fibers and SAP particles, ¶ [0760-0762, 0764]),
wherein the absorbent core (C, Fig. 16B) comprises at least a top layer (K, Fig. 16B) and a bottom layer (L, Fig. 16B) wherein the bottom layer (L, Fig. 16B) is positioned between the top layer (K, Fig. 16B) and the backsheet (B, Fig. 16B),
and wherein said absorbent material (¶ [0760-0762, 0754) is contained within at least one core wrap substrate (¶ [0458-0459]) enclosing said absorbent material therein (¶ [0458-0459, 0760-0762, 0764]), characterized in that the at least top layer (K, Fig. 16B) and the bottom layer (L, Fig. 16B) are directly stacked one on top of the other to form a contact zone where the top layer (K, Fig. 16B) directly adjoins to the bottom layer (L, Fig. 16B),
and in that the top layer (K, Fig. 16B) comprises one or more first superabsorbent polymer grades SAP1 (¶ [0761, 0764], Table 9; the top layer uses Hysorb®7085) and the bottom layer (L, Fig. 16B) comprises one or more second superabsorbent polymer grades SAP2 (¶ [0761, 0764], Table 9; the bottom layer uses the SAP of example 4), wherein the first superabsorbent polymer grades SAP1 have an AUL that is greater than the AUL of second superabsorbent polymer grades SAP 2 (¶ [0761, 0764], Table 9; SAP1 AUL at 0.7 psi which is the same testing pressure as in Applicant’s specification is 22.5 g/g and SAP2 AUL at 0.7 psi is 11.7 g/g), and wherein the first superabsorbent polymer grades SAP 1 have an AUL, as measured according to the test method herein, of greater than 15 g/g (¶ [0761, 0764], Table 9; SAP1 AUL is 22.5 g/g).
Regarding Claim 2, Daniel discloses the first and second superabsorbent polymers are in the form of particles (¶ [0761-0764]).
Regarding Claim 3, Daniel discloses the second superabsorbent polymer grades have an AUL of from 5 g/g to 14 g/g (¶ [0764]; Table 9 shows the SAP of Example 4 has an AUL of 11.7 g/g).
Regarding Claim 4, Daniel discloses the first superabsorbent polymer grades have an AUL of greater than 18 g/g (¶ [0761, 0764]; Table 9 shows Hysorb®7085 has an AUL of 22.5 g/g).
Regarding Claim 7, Daniel discloses the AUL ratio of the first superabsorbent polymer grades and second superabsorbent polymer grades is greater than 1.4 (¶ [0761, 0764], Table 9; 22.5 divided by 11.7 is a ratio of 1.92).
Regarding Claim 8, Daniel discloses the contact zone comprises a blend of first superabsorbent polymer grades SAP1 and second superabsorbent polymer grades SAP2 that are intermixed such that a layered absorbent core is formed having a top layer (K, Fig. 16B) wherein the superabsorbent polymer consists of said first superabsorbent polymer grades SAP1, a bottom layer (L, Fig. 16B) wherein the superabsorbent polymer consists of said second superabsorbent polymer SAP2, and a contact zone between said top (K, Fig. 16B) and bottom layers (L, Fig. 16B) comprising a mixture of first superabsorbent polymer grades SAP1 and second superabsorbent polymer grades SAP2 (¶ [0761, 0764], Table 9; the contact zone can be considered the bottom most portion of K and the top most portion of L, and therefore the contact zone is considered a blend of intermixed polymers that form a first layer of one SAP and a second layer of the other SAP).
Regarding Claim 11, Daniel discloses the cellulose fibers are comprised at a level of at least 20%wt by total weight of the absorbent material (¶ [0761, 0762, 0764]; cellulose fibers comprise 7g/(7+13)g = 35% by total weight of the absorbent material of the core).
Regarding Claim 14, Daniel discloses an acquisition distribution layer (D, Fig. 16B; ¶ [0763-0764]) positioned between the topsheet (A, Fig. 16B) and the core wrap (¶ [0458]), and wherein the majority of the surface of said acquisition distribution layer (D, Fig. 16B) is in direct contact with at least said core wrap substrate (¶ [0458]; a binder between the core wrap tissue and the ADL is optional); and wherein the acquisition distribution layer comprises a spunbond nonwoven (¶ [0603] indicates the ADL can be a fiber web like those mentioned as useful for the topsheet, and ¶ [0603] indicates the topsheet can be a spunbond nonwoven).
Regarding Claim 16, Daniel discloses the SAP ratio is from 0.3 to 3 (¶ [0761-0762, 0764]; there are 6.5 grams of SAP in the bottom layer and 6.5 grams of SAP in the top layer, yielding a SAP ratio of 1).
Regarding Claim 17, Daniel discloses the SAP ratio is less than 1; and/or wherein SAP1 is comprised at a level of from more than 10%wt to 50%wt by total weight of the superabsorbent polymer (¶ [0761-0762, 0764]; there are 6.5 grams of SAP in the bottom layer and 6.5 grams of SAP in the top layer, yielding a SAP1 %wt of 6.5g/(6.5+6.5)g x 100 = 50%wt SAP1 which is within the claimed range).
Regarding Claim 18, Daniel discloses the at least top layer (K, Fig. 16B) and bottom layer (L, Fig. 16B) each comprise an absorbent material, said absorbent material comprising a mixture, or blend, of cellulose fibers and superabsorbent polymers (¶ [0760-0764]).
Regarding Claim 19, Daniel discloses the first superabsorbent polymer grades have an AUL of from 19 g/g to 55 g/g (¶ [0761, 0764]; Table 9 shows Hysorb®7085 has an AUL of 22.5 g/g).
Regarding Claim 20, Daniel discloses the AUL ratio of the first superabsorbent polymer grades and second superabsorbent polymer grades is from 1.6 to 5 (¶ [0761, 0764], Table 9; 22.5 divided by 11.7 is a ratio of 1.92).
Regarding Claim 21, Daniel discloses the cellulose fibers are comprised at a level of from 25%wt to 40wt% by total weight of the absorbent material ((¶ [0761, 0762, 0764]; cellulose fibers comprise 7g/(7+13)g = 35% by total weight of the absorbent material of the core).
Regarding Claim 23, Daniel discloses the SAP ratio is from 0.2 to 0.9; and/or wherein SAP1 is comprised at a level of from more than 10%wt to 50%wt by total weight of the superabsorbent polymer (¶ [0761-0762, 0764]; there are 6.5 grams of SAP in the bottom layer and 6.5 grams of SAP in the top layer, yielding a SAP1 %wt of 6.5g/(6.5+6.5)g x 100 = 50%wt SAP1 which is within the claimed range).
Claim Rejections - 35 USC § 102 / 35 USC § 103
Claim(s) 15 and 22 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Daniel et al (US 2020/0121521), or, in the alternative, under 35 U.S.C. 103 as being unpatentable over Daniel et al (US 2020/0121521).
Regarding Claim 15, Daniel is silent whether the first superabsorbent polymer grades SAP1 have an absorption speed, according to the test method herein, of more than 50 seconds, and wherein the second superabsorbent polymer grades SAP2 have an absorption speed, according to the test method herein, of less than 45 seconds. However, the absorption speeds reported for SAP1 and SAP2 of Daniel are obtained using a different testing method than that of Applicant (¶ [0699] of Daniel compared to ¶ [0114-0130] of Applicant’s specification). Therefore, since the testing methods differ, it would be expected that the absorption speed result would differ. It has been held that 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. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). Therefore, since Daniel discloses the substantially identical structure and composition of the claim, it would be understood by one of ordinary skill in the art that the claimed absorption speeds would be an inherent property of SAPs of Daniel had the exact same testing methods been used.
In the alternative, if one of ordinary skill in the art would not have found the absorption speeds of the first and second superabsorbent polymers to be inherent, it would have been obvious to modify the first and second superabsorbent polymers to have the claimed absorption speeds, since it has been held that when the general conditions are disclosed in the art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233 (See MPEP § 2144.05)
Regarding Claim 22, Daniel is silent whether the first superabsorbent polymer grades SAP1 have an absorption speed, according to the test method herein, of from 60 seconds to 150 seconds, and wherein the second superabsorbent polymer grades SAP2 have an absorption speed, according to the test method herein, of from 5 seconds to 40 seconds. However, the absorption speeds reported for SAP1 and SAP2 of Daniel are obtained using a different testing method than that of Applicant (¶ [0699] of Daniel compared to ¶ [0114-0130] of Applicant’s specification). Therefore, since the testing methods differ, it would be expected that the absorption speed result would differ. It has been held that 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. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). Therefore, since Daniel discloses the substantially identical structure and composition of the claim, it would be understood by one of ordinary skill in the art that the claimed absorption speeds would be an inherent property of SAPs of Daniel had the exact same testing methods been used.
In the alternative, if one of ordinary skill in the art would not have found the absorption speeds of the first and second superabsorbent polymers to be inherent, it would have been obvious to modify the first and second superabsorbent polymers to have the claimed absorption speeds, since it has been held that when the general conditions are disclosed in the art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233 (See MPEP § 2144.05)
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.
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.
Claim(s) 5, 6, and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Daniel et al (US 2020/0121521) in view of Chan et al (US 2020/0054782).
Regarding Claims 5 and 6, Daniel is silent whether the top layer comprises a plurality of superabsorbent polymer grades, and wherein the difference in AUL between said grades is less than 15%, and whether the bottom layer comprises a plurality of superabsorbent polymer grades, and wherein the difference in AUL between said grades is from 0% to 50%.
Chan teaches an absorbent article, thus being in the same field of endeavor, where mixtures of biocompostable and non-biocompostable superabsorbents are used to increase the biodegradability of the absorbent article while also improving the performance of the article (¶ [0172]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the first and second superabsorbent polymer grades to both be a plurality of superabsorbent polymer grades, as taught by Chan, to allow the core to have increased biodegradability and therefore be more environmentally friendly (as motivated by Chan ¶ [0047, 0064, 0172]). The combination of Daniel/Chan would have the AULs of the plurality of first superabsorbent polymers be the same, and the AULs of the plurality of second superabsorbent polymers to be the same, so as to not interfere with the effects of the differences in AULs within the core of Daniels/Chan.
Regarding Claim 9, Daniel is silent whether the second superabsorbent polymer grades SAP2 comprises Low-AUL Bio-SAP.
Chan teaches an absorbent article, thus being in the same field of endeavor, with a Low-AUL Bio-SAP (¶ [0047, 0064]) to allow the absorbent article to be biocompostable and therefore more environmentally friendly (¶ [0047, 0064]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the second superabsorbent polymer grades SAP2 to comprise Low-AUL Bio-SAP, as taught by Chan, to allow the absorbent article to be biocompostable and therefore more environmentally friendly (as motivated by Chan ¶ [0047, 0064]).
Claim(s) 10 is rejected under 35 U.S.C. 103 as being unpatentable over Daniel et al (US 2020/0121521) in view of Hird et al (US 2007/0219521).
Regarding Claim 10, Daniel is silent whether the first superabsorbent polymer grades SAP1 are free of Low-AUL Bio-SAP; and/or comprise High-AUL Bio-SAP.
Hird teaches an absorbent article, thus being in the same field of endeavor, with a High-AUL Bio-SAP (¶ [0020, 0073]) to allow the absorbent article to be biocompostable and therefore environmentally friendly (¶ [0051-0052, 0066-0068]).
Therefore, it would have been obvious to modify the first superabsorbent polymer grades SAP1 to comprise High-AUL Bio-SAP, as taught by Hird, to allow the absorbent article to be biocompostable and therefore more environmentally friendly (as motivated by Hird ¶ [0051-0052, 0066-0068]).
Claim(s) 12 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Daniel et al (US 2020/0121521) in view of Roe et al (US 2016/0354260).
Regarding Claim 12, Daniel is silent whether the core wrap substrate comprises upper and lower layers that are joined together by one or more adhesives; and/or by one or more mechanical bonds selected from the group consisting of ultrasonic bonds, thermal bonds, pressure bonds, and combinations thereof; and wherein said upper and lower layers of the core wrap substrate are joined together at one or more attachment zones to form one or more channels substantially free of absorbent material, and wherein the channel(s) have a shape such to form at least two clusters of absorbent material circumscribed by said attachment zones and wherein the at least two clusters are spaced apart along a dimension parallel to the longitudinal axis and wherein the two or more clusters are connected by one or more attachment zones bridging between said clusters and extending substantially along said longitudinal axis.
Roe teaches an absorbent article, thus being in the same field of endeavor, with a core wrap substrate comprises upper (16, Fig. 2) and lower (16’, Fig. 2) layers that are joined together by one or more adhesives (¶ [0089]), and wherein said upper and lower layers (16 and 16’, Fig. 2) are joined together at one or more attachment zones (bondings forming channels 26, 26’, 55, Figs. 2 and 23) to form one or more channels (26, 26’, 55, Fig. 23; ¶ [0108]) substantially free of absorbent material (¶ [0089]), and wherein the channels (26, 26’, 55, Fig. 23) have a shape such to form at least two clusters (top and bottom lateral struts 128, Fig. 23) of absorbent material (¶ [0108]) circumscribed by said attachment zones (bondings forming channels 26, 26’, 55, Figs. 2 and 23) and wherein the at least two clusters (top and bottom lateral struts 128, Fig. 23) are spaced apart along a dimension parallel to the longitudinal axis (80’, Fig. 23), and wherein the two or more clusters (top and bottom lateral struts 128, Fig. 23) are connected by one or more attachment zones (bondings forming channels 26, 26’, 55, Fig. 13) bridging between said clusters (top and bottom lateral struts 128, Fig. 23) and extending substantially along said longitudinal axis (80’, Fig. 23). This structure improves the ability of the article to recover from in-use deformation which therefore improves performance (¶ [0119]).
Therefore, it would have been obvious to modify the core wrap substrate of Daniel to comprise upper and lower layers that are joined together by adhesives, and wherein said upper and lower layers are joined together at one or more attachment zones to form one or more channels substantially free of absorbent material, and wherein the channels have a shape such to form at least two clusters of absorbent material circumscribed by said attachment zones and wherein the at least two clusters are spaced apart along a dimension parallel to the longitudinal axis, and wherein the two or more clusters are connected by one or more attachment zones bridging between said clusters and extending substantially along said longitudinal axis, as taught by Roe (Fig. 23). This structure improves the ability of the article to recover from in-use deformation which therefore improves performance (as motivated by Roe ¶ [0119]).
Regarding Claim 13, the combination of Daniel/Roe discloses the claimed invention substantially as claimed as set forth above for Claim 12.
The combination of Daniel/Roe further discloses the upper layer is joined to the bottom layer at one or more bonding points positioned inboard of a perimeter of the absorbent core, and wherein said bonding points have an aspect ratio of less than 3 (the bondings that form the channels 26, 26’, and 55 of Roe can be divided into a plurality of bonding points that have an equal size in the longitudinal and lateral directions and therefore having an aspect ratio of less than 3; Fig. 23 of Roe).
Conclusion
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/JESSICA ARBLE/ Primary Examiner, Art Unit 3781