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 05/01/2026 in which claims 1, 4, and 17 were amended, claims 1-21 are pending in the instant application and in light of the restriction requirement, claims 1-16 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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 05/01/2026 has been entered.
Priority
The instant application is a 371 of PCT/US2021/063058 which claims priority to U.S. Provisional App. no. 63/132,762 filed on 12/31/2020.
Claims 1-21 receive priority to the prior-filed application, filed on 12/31/2020.
Response to Arguments
Rejections of the Claims under 35 U.S.C. 103
Applicant's arguments filed 05/01/2026 have been fully considered but they are not persuasive and/or wherein the claim amendments have necessitated new grounds of rejection.
Regarding claim 1, the applicant asserts on pg. 5-6 that the cited combination of the prior art to Bishop and Bodaghi teaches away from the pending claims.
In response to the applicant’s arguments, the examiner respectfully disagrees. The applicant asserts that the Office relies on Bodaghi to teach structure fibers within the claimed 8-14 dtex range. In the previous Office Action filed 01/30/2026, the primary reference Bishop was shown to disclose structure fibers having a linear density of 1.7-17.8 dtex (col. 5:66-67 and col. 6:1-11). Bishop fails to explicitly disclose the exact range claimed; therefore, Bodaghi was brought in to show a reference that comprises staple fibers in a similar range to Bishop and the claimed invention and that provides further reasoning of why one of ordinary skill in the art would modify the denier of the fibers as this is a result-effective variable.
Applicant argues that Bishop is concerned with maintaining high void volume, permeability, and softness, which would be reduced by introducing the more coarse fibers as disclosed by Bodaghi. However, such a variability in texture does not constitute a “teaching away.” A reference does not teach away if it merely expresses a general preference for a particular quality but does not “criticize, discredit or otherwise discourage” the combination as set forth by the Examiner. See MPEP 2145(X)(D)(1). Indeed, the fact that Bishop discloses the use of coarse fibers in his binder-rich composition is substantial evidence that Bishop does not teach away from using the fibers within a denier range as disclosed by Bodaghi.
Further regarding claim 1, the applicant asserts on pg. 6-7 that the rejection is based on improper hindsight reasoning.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning (see p 6-7 of Applicant’s Remarks), it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. Furthermore, there is no requirement for express motivation in the art to determine obviousness. See MPEP 2145(X)(A). The applicant asserts that the cited art provides no guidance for making simultaneous modifications by combining the coarse fiber sizes suggested by Bodaghi with a binder concentration far exceeding that disclosed or suggested by either reference such that the rejection relies on improper hindsight reasoning. As discussed above, the coarse fiber sizes are disclosed in Bishop. Further, Bishop discloses the use of binder concentration above 50% of the total weight of the layer, wherein the binder fibers have an average denier equal to or greater than 2. The amended independent claim requires a binder concentration between 40-80%. This does not far exceed the binder concentration disclosed in Bishop, but instead overlaps it. This rejection takes into account only the knowledge from the prior art.
Further regarding claim 1, the applicant asserts on pg. 7 that the limitations to the dtex and the weight percent are not trivial.
In response to the applicant’s argument, the examiner respectfully notes that while these limitations may not be trivial, they do not have criticality. The applicant asserts that as demonstrated by the Examples in the specification, samples utilizing structure fibers within the claimed range and within the claimed binder fiber/structure fiber weight percent exhibited superior fluid handling characteristics. The applicant points to Samples 7 and 8 as demonstrating said superior characteristics as compared to Samples 1 and 2 containing polyester fibers. Samples 7 and 8 as described in the Tables on pg. 14-15 comprise 60% binder fibers and 40% structure fibers having a linear density of 9.1 dtex. MPEP 716.02(d) states, “To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range.” The determination of superior characteristics demonstrated in Samples 7 and 8 does not show criticality for the entire claimed ranges of dtex and weight percent. MPEP 716.02(b) states, “The evidence relied upon should establish "that the differences in results are in fact unexpected and unobvious and of both statistical and practical significance."” This demonstration of superior characteristics does not indicate if these characteristics can be considered unexpected and significant. Further still, this specific assertion in the specification seems to be especially probative in regards to samples containing and not containing polyester fibers. Bishop does not require the use of polyester fibers, comprises structure fibers having a linear density which overlaps the claimed linear density, and comprises structure fibers and binder fibers in weight percentages which overlap the claimed weight percentages.
The amendments to the claims have necessitated new grounds of rejection.
Claim Interpretation
The Examiner recognizes claim 14 as a "product-by-process” claim. Even 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 (see MPEP 2113).
As a product claim, Examiner has determined that claim 14 requires the nonwoven web to comprise the following structural elements in addition to those in the claims from which they depend: a bonded web.
In the prior art rejection in this Office action, Examiner considers claim 14 to be met when a reference teaches these structural limitations.
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 1-10 and 13-16 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent no. 5,486,166 A to Bishop in view of US/2002/0177378 A1 to Bodaghi.
Regarding claim 1, Bishop discloses an absorbent article (col. 3 ln. 12-34) comprising:
a body side liner (col. 3 ln. 12-16);
an outer cover (col. 3 ln. 12-16);
an absorbent structure positioned between the body side liner and the outer cover (col. 3 ln. 12-16); and
a surge layer positioned between the body side liner and the absorbent structure (col. 3 ln. 25-36), the surge layer comprising a nonwoven web having fluid management features (col. 2 ln. 27-46; col. 3 ln. 25-36) comprising a blend of binder fibers and structure fibers (col. 6 ln. 30-47, polyethylene/polypropylene as binder fibers and polypropylene as structure fibers), the structure fibers comprising polypropylene staple fibers (col. 5 ln. 36-44; col. 6 ln. 30-47, polyethylene/polypropylene as binder fibers and polypropylene as structure fibers) having a linear density of from about 1.7-17.8 dtex (col. 5 ln. 66-67 and col. 6 ln. 1-11, fibers used in the processes for creating nonwovens may range between 1.5-16 denier;
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), wherein the binder fibers form bond sites within the surge layer (col. 6 ln. 30-41; col. 14 ln. 33-38), wherein the structure fibers are present in the nonwoven web in an of amount of less than at least 50% by weight, and the binder fibers are present in the nonwoven web in an amount of at least 50% by weight (col. 6 ln. 42-51).
Bishop differs from the instantly claimed invention in that Bishop fails to explicitly disclose wherein the linear density of the polypropylene staple fibers is from about 8-14 dtex.
Bodaghi teaches a nonwoven suitable for use as an acquisition/distribution layer that comprises two monocomponent fibers and a bicomponent fiber (para. 0018-0020) that have linear densities between 3.3-22.2 dtex (para. 0020, denier of bicomponent fiber and first monocomponent fiber may be similar; para. 0022-0023, monocomponent fibers may have 3-20 denier). Bodaghi further discloses that higher denier fibers are cheaper than lower denier fibers, higher denier fibers may result in a web of lower softness and less drapability so that the density of the web may be too low to permit effective spreading (para. 0022), lower denier fibers may not produce the desired loft effect, and higher denier fibers may be too bulky in a way that would produce a fabric of lower density than required in order to provide the desired distribution of a liquid insult prior to absorption thereof (para. 0023); therefore, the linear density of the fibers may be considered a result-effective variable in that changing the denier of the fibers changes the cost of the fibers, the loft of the nonwoven, the density of the nonwoven, and the spreading capability of the nonwoven.
It appears that one of ordinary skill in the art would have had a reasonable expectation of success in modifying the Bishop device to have binder fibers having a linear density 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 before the effective filing date of the claimed invention to modify the device of Bishop by making the linear density of the polypropylene staple fibers be between 8-14 dtex 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, Bishop differs from the instantly claimed invention in that Bishop fails to explicitly disclose wherein the structure fibers are present in the nonwoven web in an amount from about 20% to about 60% by weight, and the binder fibers are present in the nonwoven web in an amount from about 40% to about 80% by weight.
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 amount of each fiber of Bishop from less than 50% by weight and at least 50% by weight, respectively, to between 20-60% by weight and 40-80% by weight, respectively, since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” See MPEP 2144.05(I). Further, applicant appears to have placed no criticality on the claimed range (see pg. 2 ln. 18-22 indicating the weight percentages “can” be within the claimed ranges).
Regarding claim 2, the cited prior art suggests the invention of claim 1. Bishop further discloses: wherein the polypropylene staple fibers have a linear density of from about 1.7-17.8 dtex (col. 5 ln. 66-67 and col. 6 ln. 1-11, fibers used in the processes for creating nonwovens may range between 1.5-16 denier;
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); however, the prior art differ from the instantly claimed invention in that they fail to explicitly disclose wherein the polypropylene staple fibers have a linear density of from about 8.5-10.5 dtex.
As explained in the rejection of claim 1 above, the linear density of the fibers is a result-effective variable, and therefore, it appears that one of ordinary skill in the art would have had a reasonable expectation of success in modifying the Bishop device to have polypropylene staple fibers having a linear density 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 before the effective filing date of the claimed invention to modify the device of Bishop by making the linear density of the polypropylene staple fibers be between 8.5-10.5 dtex 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).
Regarding claim 3, the cited prior art suggests the invention of claim 1. Bishop further discloses: wherein the polypropylene staple fibers comprise hollow fibers (col. 6 ln. 17-18).
Regarding claim 4, the cited prior art suggests the invention of claim 1. Bishop further discloses: wherein the structure fibers are present in the nonwoven web in an of amount of less than at least 50% by weight, and the binder fibers are present in the nonwoven web in an amount of at least 50% by weight (col. 6 ln. 42-51); however, the prior art differ from the instantly claimed invention in that they fail to explicitly disclose wherein the structure fibers are present in the nonwoven web in an amount from about 35% to about 55% by weight, and the binder fibers are present in the nonwoven web in an amount from about 45% to about 65% by weight.
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 amount of each fiber of Bishop from less than 50% by weight and at least 50% by weight, respectively, to between 35-55% by weight and 45-65% by weight, respectively, since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” See MPEP 2144.05(I). Further, applicant appears to have placed no criticality on the claimed range (see pg. 2 ln. 18-22 indicating the weight percentages “can” be within the claimed ranges).
Regarding claim 5, the cited prior art suggests the invention of claim 1. Bishop further discloses: wherein the nonwoven web does not contain any polyester fibers (col. 6 ln. 25-52, nonwoven web may be comprised of different fibers, does not require the use of polyester fibers).
Regarding claim 6, the cited prior art suggests the invention of claim 1. Bishop further discloses: wherein the binder fibers comprise bicomponent fibers (col. 6 ln. 30-47, polyethylene/polypropylene as binder fibers).
Regarding claim 7, the cited prior art suggests the invention of claim 6. Bishop further discloses: wherein the bicomponent fibers are made from polyolefin polymers (col. 6 ln. 30-47, polyethylene/polypropylene as binder fibers).
Regarding claim 8, the cited prior art suggests the invention of claim 6. Bishop further discloses: wherein the bicomponent fibers include a sheath layer surrounding a core, the sheath layer comprising a polyethylene polymer, the core comprising a polypropylene polymer (col. 6 ln. 30-47, polyethylene/polypropylene as binder fibers).
Regarding claim 9, the cited prior art suggests the invention of claim 6. Bishop further discloses: wherein the binder fibers have a linear density equal or greater than 2.2 dtex (col. 6 ln. 51-52, bicomponent fibers have an average denier equal to or greater than 2;
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; col. 5 ln. 66-67 and col. 6 ln. 1-11, fibers used in the processes for creating nonwovens may range between 1.5-16 denier); however, the prior art differ from the instantly claimed invention in that they fail to explicitly disclose wherein the binder fibers have a linear density of from about 3 dtex to about 6 dtex.
As explained in the rejection of claim 1 above, the linear density of the fibers is a result-effective variable, and therefore, it appears that one of ordinary skill in the art would have had a reasonable expectation of success in modifying the Bishop device to have binder fibers having a linear density 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 before the effective filing date of the claimed invention to modify the device of Bishop by making the linear density of the binder fibers be between 3-6 dtex 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).
Regarding claim 10, the cited prior art suggests the invention of claim 6. Bishop further discloses: wherein the binder fibers have a linear density equal or greater than 2.2 dtex (col. 6 ln. 51-52, bicomponent fibers have an average denier equal to or greater than 2;
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; col. 5 ln. 66-67 and col. 6 ln. 1-11, fibers used in the processes for creating nonwovens may range between 1.5-16 denier); however, the prior art differ from the instantly claimed invention in that they fail to explicitly disclose wherein the binder fibers have a linear density of from about 6.5 dtex to about 12.5 dtex.
As explained in the rejection of claim 1 above, the linear density of the fibers is a result-effective variable, and therefore, it appears that one of ordinary skill in the art would have had a reasonable expectation of success in modifying the Bishop device to have binder fibers having a linear density 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 before the effective filing date of the claimed invention to modify the device of Bishop by making the linear density of the binder fibers be between 6.5-12.5 dtex 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).
Regarding claim 13, the cited prior art suggests the invention of claim 1. Bishop further discloses: wherein the nonwoven web has a basis weight of at least 20 gsm or 40-68 gsm (col. 2 ln. 42-48); however, the prior art differ from the instantly claimed invention in that they fail to explicitly disclose wherein the nonwoven web has a basis weight of from about 30 gsm to about 90 gsm.
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 basis weight of the nonwoven web of Bishop from between 40-68 gsm to between 30-90 gsm since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” See MPEP 2144.05(I). Further, applicant appears to have placed no criticality on the claimed range (see pg. 10 ln. 1-5 indicating the basis weight “can” be within the claimed range).
Regarding claim 14, the cited prior art suggests the invention of claim 1. Bishop further discloses: wherein the nonwoven web comprises a carded and through-air bonded web (col. 3 ln. 45-67, col. 4, and col. 5 ln. 1-65, processes of forming the nonwoven web; col. 6 ln. 30-41).
Regarding claim 15, the cited prior art suggests the invention of claim 1. Bishop further discloses: wherein the binder fibers and the structure fibers have an average fiber length of from about 38 mm to about 51 mm (col. 5 ln. 66-67 and col. 6 ln. 1-11); however, the combination of the prior art differ from the instantly claimed invention in that they fail to disclose wherein the binder fibers and the structure fibers have an average fiber length of from about 38 mm to about 65 mm.
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 length of the fibers of Bishop from between 38-51 mm to between 38-65 mm since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” See MPEP 2144.05(I). Further, applicant appears to have placed no criticality on the claimed range (see pg. 3 ln. 3-5 indicating the length “can” be within the claimed range).
Regarding claim 16, the cited prior art suggests the invention of claim 1. Bishop further discloses: wherein the surge layer further comprises a hydrophilic finish applied to fibers contained in the nonwoven web (col. 7 ln. 43-49; col. 14 ln. 45-48).
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Bishop and Bodaghi as applied above, and further in view of U.S. Patent no. 7,195,819 B2 to Hietpas.
Regarding claim 11, the cited prior art suggests the invention of claim 6; however, the prior art differ from the instantly claimed invention in that they fail to explicitly disclose wherein the binder fibers have a tenacity of greater than about 2 cN and less than about 4.5 cN.
Hietpas teaches bicomponent fibers that may be used to form fabrics having a tenacity (col. 4 ln. 1-10; col. 6 ln. 40-46). Hietpas further teaches that when tenacity-at-break is too low, fibers can break during carding and when tenacity-at-break is too high, fabrics comprising the fiber can exhibit undesirable pilling (col. 4 ln. 1-10); therefore, tenacity may be considered a result-effective variable in that changing the tenacity of the fibers changes the strength of the fibers during carding and the final product created from the fibers.
It appears that one of ordinary skill in the art would have had a reasonable expectation of success in modifying the Bishop device to have binder fibers having a tenacity 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 before the effective filing date of the claimed invention to modify the device of Bishop by making the tenacity of the binder fibers be greater than about 2 cN and less than about 4.5 cN 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).
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Bishop and Bodaghi as applied above, and further in view of U.S. Patent no. 6,610,039 B1 to Wilhelm.
Regarding claim 12, the cited prior art suggests the invention of claim 6; however, the prior art differ from the instantly claimed invention in that they fail to explicitly disclose wherein the binder fibers have an elongation of greater than about 170%.
Wilhelm teaches fibers in a surge layer that have an elongation within 50-400% (col. 18 ln. 26-37). Wilhelm further teaches that if the elongation of the fibers in the surge layer is too low, the surge layer may not be sufficiently stretchable to allow the desired level of elongation and if the elongation of the fibers in the surge layer is too high, the surge layer may be excessively contracted and may not be able to intake liquid at a sufficiently rapid rate (col. 18 ln. 38-48); therefore, the elongation of the fibers may be considered a result-effective variable in that changing the elongation of the fibers changes the stretchability of the article and the speed of acquisition of liquid.
It appears that one of ordinary skill in the art would have had a reasonable expectation of success in modifying the Bishop device to have binder fibers having an elongation 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 before the effective filing date of the claimed invention to modify the device of Bishop by making the elongation of the binder fibers be greater than about 170% 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).
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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sarah Al-Hashimi can be reached on (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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/Linnae E. Raymond/Examiner, Art Unit 3781
/LESLIE R DEAK/Primary Examiner, Art Unit 3799
15 May 2026
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