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 .
Response to Amendment
Applicant amended claims 1, 4, 8, 10-11, 15, 19, 21-24, 27, and 30. Claims 1-8, 10-15, 17, 19, 21-27, and 30 are currently pending.
Response to Arguments
Applicant’s arguments, see page 7 of Applicant’s Remarks, filed 11/14/25, with respect to the rejections of claims 1, 4, 8, 10-11, 15, 19, 21-24, 27, and 30 under 35 U.S.C. 112(b) as indefinite have been fully considered and are persuasive in light of the amendments to the claims. Therefore, the rejections have been withdrawn.
Applicant’s arguments, see pages 8-9 of Applicant’s Remarks, with respect to the rejections of claims 1-3, 5, 10-14, and 30 under 35 U.S.C. 103 over Bianchi in view of Mecl, of claims 6-8 in further view of Chester, of claims 15, 17, and 27 in further view of Carroll, of claims 19 and 21-23 in further view of Smet, and of claims 24-26 in further view of Coslett have been fully considered and are persuasive in light of the amendment to claim 1 to include the subject matter of claim 4 which was indicated to be allowable in the Non-Final Rejection dated 08/01/2025. Accordingly, the rejections have been withdrawn.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1, 8, 11, and 14-15 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 23, 25, and 27 of copending Application No. 18/257,451 (reference application) filed 12/09/25. Although the claims at issue are not identical, they are not patentably distinct from each other.
Regarding claim 1, reference claim 23 is dependent upon reference claim 1, which recites all the elements of claim 1 except for the second layer of the bottom distribution assembly, its second density range, and the difference between the densities of the first and second layers of the bottom distribution assembly. Reference claim 23 further recites the second layer of the bottom distribution assembly, its second density range and the difference between the densities of the first and second layers of the bottom distribution assembly. While reference claim 23 does not explicitly disclose a bottom distribution assembly, reference claim 23 recites a bottom layer with an average density between 20 and 400 kg/m3 and a second bottom layer with a second average density between 100 and 400 kg/m3 such that the second average density is at least 20 kg/m3 higher than the first average density and the second bottom layer is in contact with the backsheet, which means that the first bottom layer is closer to the absorbent material than the second bottom layer. The bottom distribution assembly of claim 1 comprises a first layer with a first density between 20 and 150 kg/m3, a second density between 100 and 400 kg/m3 such that the second density is at least 20 kg/m3 higher than the first density and the first layer is closer to the absorbent material than the second layer. Therefore, the bottom layer of reference claim 23 corresponds to the first layer of claim 1 and the second bottom layer of reference claim 23 corresponds to the second layer of claim 1. Additionally, the first layer density between 20 and 150 kg/m3 of claim 1 lies within the bottom layer density between 20 and 400 kg/m3 of reference claim 23. Therefore, reference claim 23 recites all the subject matter of claim 1, and claim 1 is not patentably distinct from reference claim 23.
Regarding claim 8, reference claim 25, which is dependent on reference claim 23, recites the subject matter of claim 8, which is dependent on claim 1. Therefore, because claim 1 is not patentably distinct from reference claim 23, claim 8 is not patentably distinct from reference claim 25.
Regarding claim 11, reference claim 23, via its dependency on reference claim 1, recites that the bottom layer, which corresponds to the first layer of the present application, comprises more than 25 weight% of synthetic fibers. Claim 11, which is dependent on claim 1, recites that the first layer and/or the second layer comprise more than 90 weight% of synthetic fibers. Therefore claim 11 is not patentably distinct from reference claim 23.
Regarding claim 14, reference claim 27, which is dependent on reference claim 23, recites the subject matter of claim 14, which is dependent on claim 1. Therefore, because claim 1 is not patentably distinct from reference claim 23, claim 14 is not patentably distinct from reference claim 27.
Regarding claim 15, reference claim 23, via its dependency on reference claim 1 recites the subject matter of claim 15, which is dependent on claim 1, and therefore claim 15 is not patentably distinct from reference claim 23.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Allowable Subject Matter
Claims 2-7, 10, 12-13, 17, 19, 21-27, and 30 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter:
As discussed in the Non-Final Rejection dated 08/01/25, claim 4 included subject matter which distinguishes over the teachings of Mecl (US 2020/0016013 A1), and therefore included subject matter which is allowable over the prior art. Independent claim 1 was amended to include that subject matter. However, in light of amendments to the claims of the present application and to the claims of family application 18/257,451, provisional nonstatutory double patenting rejections have been made of independent claim 1, as well as dependent claims 8, 11, and 14-15. Therefore, claims 2-7, 10, 12-13, 17, 19, 21-27, and 30 are objected to as being dependent on a rejected base claim.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ARJUNA P CHATRATHI whose telephone number is (571)272-8063. The examiner can normally be reached M-F 8:30-5:00.
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/ARJUNA P CHATRATHI/Examiner, Art Unit 3781
/CATHARINE L ANDERSON/Primary Examiner, Art Unit 3781