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 Arguments
Applicant’s arguments filed 3 November 2025 with respect to the rejections under 35 U.S.C. 112 have been fully considered and are persuasive. The rejection under 35 U.S.C. 112 of claims 1-16 has been withdrawn.
Applicant's arguments filed 3 November 2025 with respect to the rejections under 35 U.S.C. 103 have been fully considered but they are not persuasive.
In response to the amendment to claim 1 clarifying that the absorbent ribbon comprises a nonwoven material, and is not a separate layer of material, it is noted that Tunc is now considered to disclose an absorbent ribbon since Tunc discloses a nonwoven material.
In response to applicant's argument that Peters and Noda disclose different ranges of fiber length, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). Peters is merely relied upon to teach providing a tampon with an overwrap, and is not relied upon to teach the specific fiber length of hemp in the absorbent ribbon. Tunc discloses a nonwoven material comprising hemp having a fiber length that overlaps the claimed range. Likewise, Noda is not relied upon to teach the fiber length, but instead teaches a flushable, hydroentangled nonwoven material.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
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 (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 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, and 8-12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Tunc (3,939,836) in view of Peters (2019/0343692).
With respect to claim 1, Tunc discloses an absorbent article that is flushable, disclosed in column 1, lines 38-45, comprising a tampon (see Abstract) comprising an absorbent ribbon comprising a nonwoven material comprising hemp, as disclosed in column 4, lines 8-15, having a fiber length in the range of 0.05-1.5 inches (1.27-38.1 mm).
Tunc discloses a range of fiber length, 1.27-38.1 mm, that wholly overlaps the claimed range of about 8 mm to about 15 mm, and therefore a prima facie case of obviousness exists (see MPEP 2144.05(I)). It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to make the hemp fibers of Tunc with a fiber length of about 8 mm to about 15 mm, to prevent the fibers from ‘roping’ when flushed through a toilet (see Tunc, column 4, lines 38-40).
Tunc discloses all aspects of the claimed invention with the exception of a flushable overwrap for the tampon. Peters discloses a tampon, as shown in figure 3, comprising an absorbent ribbon 301 and an overwrap 302. It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to provide the tampon of Tunc with an overwrap, as taught by Peters, to achieve the predictable result of a tampon with a layer to protect the user from the absorbent material. Since Tunc discloses in column 1, lines 4-10, that the tampon is flushable, when modified by Peters to include an overwrap the tampon of Tunc will therefore comprise a flushable overwrap.
With respect to claim 2, the nonwoven material of Tunc is produced by an air forming process, as disclosed in column 4, line 48.
With respect to claim 3, a chemical composition and its properties are inseparable and therefore the bonding characteristics of the hemp fibers in the nonwoven of Tunc inherently will engage in hydrogen bonding.
With respect to claim 6, Tunc discloses in column 4, lines 8-15, a hemp fiber length of 12 mm or less.
With respect to claims 8-9, Tunc remains silent as to the basis weight of the absorbent ribbon as expressed in grams per meter of length. Basis weight is typically expressed in grams per area. Tunc discloses a basis weight in grams per area, and therefore discloses the general conditions of the claimed invention. It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to make the absorbent ribbon of Tunc with a basis weight in a range of about 8-11 grams per meter of length, or about 9.5 grams per meter of length, since it has been held that where the general conditions of the claims are disclosed in the prior art, finding the optimum or workable ranges involves only routine skill in the art.
With respect to claim 10, Tunc discloses in column 4, line 46, a carded material.
With respect to claim 11, Tunc discloses in column 4, lines 15 and 46, a carded hemp material.
With respect to claim 12, Tunc discloses in column 4, lines 14-17 and 22-23, the combination of hemp and viscose rayon. Tunc remains silent as to the proportion of hemp to viscose rayon. However, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to to make the absorbent ribbon of Tunc comprise about 50% hemp and about 50% viscose rayon, combine known prior art elements to yield the predictable result of a material having an even mix of natural and synthetic fibers to provide the material with both softness and stability.
Claim(s) 4-5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Tunc (3,939,836) in view of Peters (2019/0343692), and further in view of Jackson et al. (8,530,721).
With respect to claims 4-5, Tunc discloses in column 4, lines 61-63, the addition of about 4% of a binder to the nonwoven material. Tunc discloses all aspects of the claimed invention with the exception of the binder being a bi-component thermal binder fiber comprising polypropylene and polyethylene. Jackson teaches the use of bi-component binder fibers comprising polypropylene and polyethylene in an absorbent article, as disclosed in column 2, lines 29-33. It would therefore have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention for the binder of Tunc to comprise bi-component thermal binder fibers comprising polypropylene and polyethylene to achieve the predictable result of simple substitution of one known binder for another.
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Tunc (3,939,836) in view of Peters (2019/0343692), and further in view of Gilbert (2003/0097104).
With respect to claim 7, modified Tunc discloses all aspects of the claimed invention with the exception of the overwrap comprising a basis weight in a range of about 15-25 gsm. Gilbert discloses a tampon having a nonwoven overwrap, as disclosed in paragraph [0031], wherein the overwrap has a basis weight of 15-30 gsm, as disclosed in paragraph [0036]. Since the range disclosed by Gilbert encompasses the claimed range, a prima facie case of obviousness exists (see MPEP 2144.05(I)). It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to make the overwrap of Tunc as modified by Peters with a basis weight of about 15-25 gsm, as taught by Gilbert, to achieve the predictable result of an overwrap having a suitable thickness and density for use on a tampon.
Claim(s) 13-16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Peters (2019/0343692) in view of Noda et al. (7,838,725).
With respect to claim 13, Peters discloses an absorbent article comprising a tampon, as shown in figure 3, comprising an absorbent ribbon 301 comprising a nonwoven material comprising hemp, as disclosed in paragraph [0048], with a hemp fiber length in the range of 25.4-76.2 mm, as disclosed in paragraph [0033], which anticipates the claimed range of 40-55 mm. The tampon comprises an overwrap 302, as shown in figure 3.
Peters discloses all aspects of the claimed invention with the exception of the absorbent article being compostable the overwrap being flushable, and the nonwoven material being carded and formed by hydroentangling bonding. Peters discloses in paragraph [0005] that the absorbent article comprises organic material, and further discloses in paragraph [0004] that a problem with conventional materials in absorbent articles is the length of time it takes for them to degrade. While Peters does not explicitly disclose the absorbent article is compostable, Peters discloses organic materials that inherently degrade and therefore are inherently considered to be compostable. Alternatively, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to make the absorbent article of Peters compostable to achieve the predictable result of an article that degrades in a short amount of time.
Noda discloses the use of a carded, hydroentangled nonwoven web in an absorbent article, as disclosed in column 8, lines 22-27. It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to form the nonwoven material of Peters by carding and hydroentangling, as taught by Noda, to apply known techniques to a known device to achieve the predictable result of a material having fibers that are not agglomerated and are set (see Noda, column 8, lines 22-27).
Noda further discloses making layers of an absorbent article flushable, as disclosed in column 2, lines 37-40, to allow the article to easily be disposed of in a toilet. It therefore would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to make the overwrap of Peters flushable, as taught by Noda, to allow the tampon to be easily disposed of in a toilet.
With respect to claim 14, modified Peters discloses all aspects of the claimed invention with the exception of the nonwoven material comprising greater than about 50% hemp fiber. It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to make the nonwoven material of Peters with greater than about 50% hemp fibers to achieve the predictable result of a material comprising a majority of a highly renewable and more water efficient crop.
With respect to claim 15, the nonwoven material of Peters comprises a blend of materials comprising cotton, as disclosed in paragraph [0048].
With respect to claim 16, the limitation “sliver ribbon” is not an art-recognized term and therefore the scope of the limitation will be its plain meaning (see MPEP 2111.01). Any absorbent structure that has a sliver-like or ribbon-like shape is therefore considered to fall within the scope of the claim limitation. Peters discloses all aspects of the claimed invention with the exception of the ribbon having a width in the range of about 45-55 mm. It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to make the ribbon of Peters with a width in the range of about 45-55 mm, since a device having the claimed relative dimensions would not perform differently than the prior art device (see MPEP 2144.04(IV)(A)).
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 LYNNE ANDERSON whose telephone number is (571)272-4932. The examiner can normally be reached Monday-Friday 10-6.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sarah Al-Hashimi can be reached at 571-272-7159. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/CATHARINE L ANDERSON/Primary Examiner, Art Unit 3781