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 02/26/2026 have been fully considered but they are not persuasive.
Applicant argues the following:
102 Arguments: Applicant argues that the cited Nishikawa references fails to teach the limitation of claim 16 where the first belt comprises a nonwoven having a majority of fibers oriented in a fiber orientation direction, and the frangible pathway has a pathway angle, where the angle is less than 90 degrees from the fiber orientation direction. Applicant argues that examiner cites paragraphs 0068, 0074, and 0087 to show this but said citations fails to disclose this. The examiner respectfully disagrees with the applicant’s arguments. The examiner notes that said paragraph citations detail the nonwoven layer including elastics (92 para. 0068), where the nonwoven may be formed in various manners (para. 0074). The examiner notes that in mapping the prior art, (92) in figure 6 was directed toward the fiber orientation (horizontal in view of the figure), where the line of weakness can be seen extending from said fiber orientation at an angle of less than 90 degrees (see center of layer where line of weakness intersects). Applicant also argues, with regard to claim 16, that Nishikawa fails to disclose that the first substrate has a substrate basis weight and both the substrate and frangible pathway have a tear strength according to the trapezoid tear strength test, where the tear strength of the substrate is greater than the pathway tear strength. The examiner agrees that Nishikawa fails to specifically state that the tearable pathway has a lower tear strength than the substrate, but the examiner (in the previous action) follows this statement with “it should be noted that tear strength is a property resulting from the material(s) and/or structure(s) that form the substrate and the frangible pathway. One skilled in the art would already expect a frangible pathway to have a lower tear strength because the frangible pathway comprises weakened/perforated parts to allow the substrate to tear more easily.” Therefore the pathway must have a lower tear strength than the absorbent itself, as it is designed to be torn. The examiner further notes that as tear strength and basis weights are an inherent property to materials the nonwoven of Nishikawa has “a tear strength” and a “basis weight” and thus applying a test, such as the trapezoid tear strength test would still find these properties. The examiner notes per MPEP section 2112.01 I "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Thus as the trapezoid tear test does not give the device a tear strength of basis weight as said properties are inherent to the material, it is interpreted that Nishikawa anticipates that claimed limitation.
103 Arguments:
Applicant argues that the prior art fails to disclose that the tear strength of the substrate is greater than the pathway tear strength. The examiner agrees that prior art fails to specifically state that the tearable pathway has a lower tear strength than the substrate, but the examiner (in the previous action) follows this statement with “it should be noted that tear strength is a property resulting from the material(s) and/or structure(s) that form the substrate and the frangible pathway. One skilled in the art would already expect a frangible pathway to have a lower tear strength because the frangible pathway comprises weakened/perforated parts to allow the substrate to tear more easily.” Therefore the pathway must have a lower tear strength than the absorbent itself, as it is designed to be torn. Applicant further argues that there is no disclosure of the said tear strength (of the substrate) being at least 2N greater than the pathway tear strength. Applicant argues that the cited sections to teach this detail tensile strength (N/in) and not tear strength (N) and that the trapezoid tear strength test uses tear strength. The examiner find this argument to be nonpersuasive. First, the specification states that in said test “specimen preparation is identical for substrates and laminates” (page 54 line 15), “specimens are then cut” (page 54 line 22), thus indicating some distance used for the test, and “all specimens…, and for each specimen tested, load in Newtons is plotted versus crosshead displacement (mm)” thus indicating that the test uses at least some distance value for the material and relation between force and distance. Second the examiner notes that tensile strengths over the same recorded distance (For example 1 inch) would be a direct comparison of the force applied thus giving a value equivalent to tear strength, as the only difference between materials under such conditions (same distance) would be the tear strength in Newtons. As such the previously applied prior art rejection is upheld. Although a specific number of (2N greater) was not disclosed in Nishikawa, Long was brought in to teach this limitation through routine optimization. Applicant challenges that the disclosure of Long uses a reinforcing element to increase the tear strength of the tear away section, but does not teach that said element has a frangible pathway. The examiner disagrees with this interpretation. The examiner notes that Long teaches that “to prevent the pant (interpreted as a substrate) from tearing along undesired tear lines” said reinforcing element is provided to increase the strength of the tear away section to the pant compared to the threshold strength to tear along the tear line by at least 20% greater in some cases (para. 0058 of Long, previously cited). Therefore, as long teaches that the bond of the substrate around the tear line may be at least 20% greater than the tear line strength, as a means to prevent unintended ripping of the pant itself, it would have been obvious to one having ordinary skill to use the teachings of long, as a matter of routine optimization (as detailed below and the previously office action) to modify Nishikawa to have the difference in tear strengths be at least 20%, which, as detailed in the previous office action, may include a different of at least 2N.
Regarding claim 12, the applicant argues that the prior art fails to teach that the difference between the material tear strength and pathway tear strength is tear strength delta, where delta divided by the basis weight is greater than .2N. Per the previous office action and response to arguments above, tear strength is a property resulting from the material(s) and/or structure(s) that form the substrate and the frangible pathway. One skilled in the art would already expect a frangible pathway to have a lower tear strength because the frangible pathway comprises weakened/perforated parts to allow the substrate to tear more easily.” Therefore the pathway must have a lower tear strength than the absorbent itself, as it is designed to be torn. The examiner notes that delta is a variable and not a value, so as the prior art disclose a difference between the tear strengths, there is a delta. In view of the combination with Long, as detailed under the response to arguments with respect to the 103 rejection of claim 1 (See previous paragraph), the combination was upheld, where Long teaches that the material tear strength is at least 25% greater than the tear line tear strength. The examiner notes that per the previous rejection of claim 12 and as provided in this action, based on the disclosure of the prior art and this teaching, a suitable delta value was found to be 3N/in, where a suitable basis weight was 10gsm, giving a calculation of (delta/basis weight) .3 thus within the claimed range of at least .2. As such the prior art rejection is upheld.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 16 is/are rejected under 35 U.S.C. 102(a)(1) and (a)(2) as being anticipated by Nishikawa et al. US 2017/0105883, provided in the IDS.
Regarding Claim 16, Nishikawa discloses an absorbent article (Fig. 1 (20)) comprising: a chassis (22) comprising (para. 0058) a topsheet(24), a backsheet(26), and an absorbent core (28)positioned between the topsheet and the backsheet(para. 0058, see also figure 2, figure 18)), the chassis comprising a longitudinally extending first side edge and a longitudinally extending second side edge (opposing longitudinally extending edges 12, para. 0057 and figure 2) laterally separated from the first side edge by a first end edge and a second end edge longitudinally separate from the first end edge (opposing laterally extending edges 14); and a first belt joined to a portion of the chassis (front flap (40) para. 0066, where said flaps are belt-like (para. 0068)) and having a longitudinal centerline (100) and a lateral centerline substantially perpendicular to the longitudinal centerline (see annotated figure below), wherein the first belt comprises a first substrate (outer nonwoven layer (90) para. 0068) and a frangible pathway (132), wherein the first substrate of the first belt comprises a nonwoven having a majority of the fibers oriented in a fiber orientation direction (para. 0068, 0074, 0087, see nonwoven configurations (92) in figure 6) interpreted to be the same as seen in figure 1), wherein the frangible pathway has a pathway angle (see figure 1), wherein the pathway angle of at least a portion of the frangible pathway is less than 90 degrees from the fiber orientation direction (see annotated figure below, where the line of weakness intersects the centerline at an angle less than 90 and the fiber orientation line is the same direction as the lateral centerline).
The examiner notes that Nishikawa discloses a basis weight of nonwovens used in the device (para. 0101) and a tensile strength of the line of weakness (frangible pathway) (para. 0165), however, Nishikawa fails to specifically discloses a material tear strength of the first substrate. The examiner notes however that as tear strength is an inherent property to materials, the nonwoven of Nishikawa has “a tear strength”.
While Nishikawa fails to disclose a material tear strength of the first substrate being greater than the pathway tear strength of the first frangible pathway, it should be noted that tear strength is a property resulting from the material(s) and/or structure(s) that form the substrate and the frangible pathway. One skilled in the art would already expect a frangible pathway to have a lower tear strength because the frangible pathway comprises weakened/perforated parts to allow the substrate to tear more easily.
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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.
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) 1-15,17-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Nishikawa in view of Long US 2015/0272788.
Regarding Claim 1, Nishikawa discloses an absorbent article (Fig. 1 (20)) comprising: a chassis (22) comprising (para. 0058) a topsheet(24), a backsheet(26), and an absorbent core (28)positioned between the topsheet and the backsheet(para. 0058, see also figure 2, figure 18)), the chassis comprising a longitudinally extending first side edge and a longitudinally extending second side edge (opposing longitudinally extending edges 12, para. 0057 and figure 2) laterally separated from the first side edge by a first end edge and a second end edge longitudinally separate from the first end edge (opposing laterally extending edges 14); and a first belt joined to a portion of the chassis (front flap (40) para. 0066, where said flaps are belt-like (para. 0068)), wherein the first belt comprises a first substrate (para. 0066, para. 0068, where the flap comprises an inner (91) and outer nonwoven layer (90) (see figure 23), where the first substrate is interpreted as the outer nonwoven layer), wherein the first substrate comprises a first frangible pathway (line of weakness (132)), wherein at least a portion of the first frangible pathway extends at a pathway angle of less than 90 degrees from a lateral centerline of the first belt (see annotated figure below, where the line of weakness intersects the centerline at an angle less than 90).
The examiner notes that Nishikawa discloses a basis weight of nonwovens used in the device (para. 0101) and a tensile strength of the line of weakness (frangible pathway) (para. 0165), however, Nishikawa fails to specifically discloses a material tear strength of the first substrate. The examiner notes however that as tear strength is an inherent property to materials, the nonwoven of Nishikawa has “a tear strength”.
While Nishikawa fails to disclose a material tear strength of the first substrate being greater than the pathway tear strength of the first frangible pathway by at least 2N, it should be noted that tear strength is a property resulting from the material(s) and/or structure(s) that form the substrate and the frangible pathway. One skilled in the art would already expect a frangible pathway to have a lower tear strength because the frangible pathway comprises weakened/perforated parts to allow the substrate to tear more easily. The examiner notes that strength of the tear lines is disclosed to be 1-15 N/in per para. 0165 of Nishikawa. As such Nishikawa discloses a device where the tear strength of the first substrate is greater than the tear strength of the tear line, but fails to specifically teach that the substrate tear strength is at least 2N greater than the frangible pathway tear strength.
Long teaches an absorbent article with a tear away section and is thus considered analogous to the claimed invention. Per paragraph 0058, Long teaches that in example embodiments the tear strength refers to the strength required to tear the pant along desired lines, where Long teaches that said strength should be increased to prevent undesired tearing. To account for this, Long teaches that said tear strength should be suitably at least 25% greater than the threshold force, where the threshold force is the force required to tear the desired tear section (i.e. a perforated line of piece designed to be torn). As such it is interpreted that the tear strength of the pant material compared to the tear strength of a designed tearable part is a result effective variable in that changing the tear strength of the tear line changes the tear strength of the pant itself, by at least 25%. Further, it appears that one of ordinary skill in the art would have had a reasonable expectation of success in modifying the Nishikawa reference to have a first substrate tear strength of at least 25% greater than the tear line strength, 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 prior to the effective filing date of the claimed invention to modify the device of Nishikawa by making the tear strength of the first substrate at least 25% greater than and further at least 2N greater than (where in the tear line strength is 1-15N, at least 25% greater than these values would include at least 2N greater than) 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." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
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Regarding Claim 2, Nishikawa and Long teach the absorbent article of claim 1, wherein the material tear strength of the first substrate divided by the material basis weight is greater than 0.2 N/gsm. The examiner notes that as detailed under the rejection of claim 1, the tear strength of the first substrate, through routine optimization, was found to be at least 2N greater than the strength of the tear line (1-15N/in per para. 0165 of Nishikawa). Further per paragraph 0135, Nishikawa details using nonwoven webs having a basis weight of less than 15gsm, where said web is similar in basis weights to other SMS webs. The examiner notes that although this nonwoven is directed to being used in the leg cuff Nishikawa details the same nonwovens can be used for various components of the device (para. 0103) and that SMS nonwovens are known to be used for the flaps specifically (para. 0077, 0101). As such it is interpreted that the basis weight of the SMS nonwoven of the flaps is less than 15gsm. As such the ratio of strength would be (3-17+N/in [at least 2N greater than the tear line]) to 0-14gsm. Therefore the calculated ranges overlap with the claimed ranges and as such it would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to use the properties of the materials used in said calculations to reach a tensile strength/basis weight ratio equating to .3, thus within the range of greater than .2. Further, the examiner notes 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.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding Claim 3, Nishikawa and Long teach the absorbent article of claim 1, wherein the material tear strength of the first substrate divided by the material basis weight is greater than 0.3 N/gsm. The examiner notes that as detailed under the rejection of claim 1, the tear strength of the first substrate was found to be at least 2N greater than the strength of the tear line (1-15N/in per para. 0165 of Nishikawa). Further per paragraph 0135, Nishikawa details using nonwoven webs having a basis weight of less than 15gsm, where said web is similar in basis weights to other SMS webs. The examiner notes that although this nonwoven is directed to being used in the leg cuff Nishikawa details the same nonwovens can be used for various components of the device (para. 0103) and that SMS nonwovens are known to be used for the flaps specifically (para. 0077, 0101). As such it is interpreted that the basis weight of the SMS nonwoven of the flaps is less than 15gsm. As such the ratio of strength would be (3-17+N/in [at least 2N greater than the tear line]) to 0-14gsm. Therefore the calculated ranges overlap with the claimed ranges and as such it would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to use the properties of the materials used in said calculations to reach a tensile strength/basis weight ratio equating to .4, thus within the claim range of greater than .3. Further, the examiner notes 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.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding Claim 4, Nishikawa and Long the absorbent article of claim 1. The examiner notes that as detailed under the rejection of claim 1, the angle is interpreted to be less than 90 degrees. While the examiner notes that while one could reasonably interpret said angle to be less than 75 degrees, the examiner provides a rejection under 35 U.S.C 103. Per Nishikawa paragraph 0156-0157, the line of weakness (frangible path) is disclosed to be adjustable, as the shape may be straight or curved, and the orientation may be adjusted to minimize the inboard lateral distance. Per MPEP Section 2144.04 when the only difference between the prior art and claims is a relative dimension, and the device having the claimed relative dimensions would not perform differently from the prior art, the claim is not patentably distinct from the prior art. Therefore, as the prior art device comprises a absorbent article in the same manner as claim 1, where the frangible pathway comprises an angle from the lateral centerline, said line is disclosed to be adjustable, and modifying said angle would achieve the same predictable result of allowing the pathway to be torn, modifying the angle to be less than 70 degrees would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention.
Regarding Claim 5, Nishikawa and Long the absorbent article of claim 4. The examiner notes that as detailed under the rejection of claim 1, the angle is interpreted to be less than 90 degrees. The examiner notes however, that due to the lack of disclosure of the angle it cannot be interpreted that said angle is from 15-45 degrees. Per Nishikawa paragraph 0156-0157, the line of weakness (frangible path) is disclosed to be adjustable, as the shape may be straight or curved, and the orientation may be adjusted to minimize the inboard lateral distance. Per MPEP Section 2144.04 when the only difference between the prior art and claims is a relative dimension, and the device having the claimed relative dimensions would not perform differently from the prior art, the claim is not patentably distinct from the prior art. Therefore, as the prior art device comprises a absorbent article in the same manner as claim 1, where the frangible pathway comprises an angle from the lateral centerline, said line is disclosed to be adjustable, and modifying said angle would achieve the same predictable result of allowing the pathway to be torn, modifying the angle to be between 15 and 45 degrees would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention.
Regarding Claim 6, Nishikawa and Long teach the absorbent article of claim 1, wherein the material basis weight is from about 8 gsm to about 30 gsm. Per paragraph 0135, Nishikawa details using nonwoven webs having a basis weight of less than 15gsm, where said web is similar in basis weights to other SMS webs. The examiner notes that although this nonwoven is directed to being used in the leg cuff Nishikawa details the same nonwovens can be used for various components of the device (para. 0103) and that SMS nonwovens are known to be used for the flaps specifically (para. 0077, 0101). Therefore, as the prior art range for basis weight overlaps with the claimed range for basis weight, it would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to select a basis weight within the claimed range 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.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding Claim 7, Nishikawa and Long teach the absorbent article of claim 1, wherein the first belt comprises a second substrate (inner nonwoven layer 90) having a second frangible pathway (Nishikawa para. 0156, where the line of weakness may be formed of perforation through each nonwovens making up the flap), wherein the first substrate and the second substrate are joined to form the first belt (para. 0067-0068, where said inner (second substrate) and outer (first substrate) for the flap (belt).
Regarding Claim 8, Nishikawa and Long teach the absorbent article of claim 7, wherein the second substrate has a second material tear strength according to the Trapezoid Tear Strength test method. The examiner notes however that as tear strength is an inherent property to materials, the second substrate of Nishikawa has “a tear strength”.
Nishikawa discloses wherein the second substrate has a second material basis weight. Per paragraph 0135, Nishikawa details using nonwoven webs having a basis weight of less than 15gsm, where said web is similar in basis weights to other SMS webs. The examiner notes that although this nonwoven is directed to being used in the leg cuff Nishikawa details the same nonwovens can be used for various components of the device (para. 0103) and that SMS nonwovens are known to be used for the flaps specifically (para. 0077, 0101). As such it is interpreted that the basis weight of the SMS nonwoven of the flaps is less than 15gsm.
The examiner notes that as detailed under the rejection of claim 1, the tear strength of the first substrate was found to be at least 2N greater than the strength of the tear line (1-15N/in per para. 0165) through routine optimization. The examiner notes that by the logic applied in the rejection of claim 1 (the substrate tear strength must be greater than the frangible path tear strength as the path is designed to be torn), the tear strength of the second substrate would also be greater than the tear strength of the frangible pathway. Thus, it is interpreted that the second substrate is at least greater than the tear line tear strength. However there is no clear disclosure as to what the tear strength of said second material is.
Long teaches an absorbent article with a tear away section and is thus considered analogous to the claimed invention. Per paragraph 0058, Long teaches that in example embodiments the tear strength refers to the strength required to tear the pant along desired lines, where Long teaches that said strength should be increased to prevent undesired tearing. To account for this, Long teaches that said tear strength should be suitably at least 25% greater than the threshold force, where the threshold force is the force required to tear the desired tear section (i.e. a perforated line of piece designed to be torn). As such it is interpreted that the tear strength of the pant material compared to the tear strength of a designed tearable part is a result effective variable in that changing the tear strength of the tear line changes the tear strength of the pant itself, by at least 25%. Further, it appears that one of ordinary skill in the art would have had a reasonable expectation of success in modifying the Nishikawa reference to have a first substrate tear strength of at least 25% greater than the tear line strength, 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 prior to the effective filing date of the claimed invention to modify the device of Nishikawa by making the tear strength of the first substrate at least 25% greater than and further at least 2N greater than (where in the tear line strength is 1-15N, at least 25% greater than these values would include at least 2N greater than) 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." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
As such the ratio of strength would be (3-17+ N/in [at least 1N greater than the tear line]) to 0-14gsm. The calculation of 3N/10gsm would equate in a ratio of .3, within than the claimed range of at least .2. Therefore the calculated ranges overlap with the claimed ranges and as such it would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to use the properties of the materials used in said calculations to reach a tensile strength/basis weight ratio equating to .3, thus within the range of greater than .2. Further, the examiner notes 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.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding Claim 9, Nishikawa and Long teach the absorbent article of claim 8, but per the rejection of wherein the material basis weight and the second material basis weight are different. The examiner notes that per para 0089 of Nishikawa, the nonwoven web used to make the flap (belt) may comprise layers made of the same or different materials. Therefore using different materials being used for the different layers would result in a different basis weight for each of the different layers.
Regarding Claim 10, Nishikawa and Long teach the absorbent article of claim 1, wherein the difference between the material tear strength and the pathway tear strength is a tear strength delta, and wherein the tear strength delta divided by the material basis weight is greater than 0.2 N/gsm. The examiner notes that as detailed under the rejection of claim 1, the material tear strength and pathway tear strength are different. This difference of >2N is interpreted to be tear strength delta. Per paragraph 0135, Nishikawa details using nonwoven webs having a basis weight of less than 15gsm, where said web is similar in basis weights to other SMS webs. The examiner notes that although this nonwoven is directed to being used in the leg cuff Nishikawa details the same nonwovens can be used for various components of the device (para. 0103) and that SMS nonwovens are known to be used for the flaps specifically (para. 0077, 0101). As such it is interpreted that the basis weight of the SMS nonwoven of the flaps is less than 15gsm. As such the ratio is of tear strength delta (>2N, where 4N was used for the calculation of the rejection) to a basis weight 0-14gsm. Therefore the calculated ranges overlap with the claimed ranges and as such it would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to use the properties of the materials used in said calculations to reach a tensile strength/basis weight ratio equating to .4, thus within the range of greater than .2. Further, the examiner notes 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.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding Claim 11, Nishikawa and Long teach the absorbent article of claim 10, wherein the tear strength delta divided by the material basis weight is greater than 0.3 N/gsm. The examiner notes that as detailed under the rejection of claim 10, the ratio is .4 which is greater than .3.
Regarding Claim 12, Nishikawa discloses an absorbent article (Fig. 1 (20)) comprising: a chassis (22) comprising (para. 0058) a topsheet(24), a backsheet(26), and an absorbent core (28)positioned between the topsheet and the backsheet(para. 0058, see also figure 2, figure 18)), the chassis comprising a longitudinally extending first side edge and a longitudinally extending second side edge (opposing longitudinally extending edges 12, para. 0057 and figure 2) laterally separated from the first side edge by a first end edge and a second end edge longitudinally separate from the first end edge (opposing laterally extending edges 14); a first belt (front flap (40)) para. 0066, disclosed as belt-like per para. 0068) comprising an inner wearer facing surface (para. 0068, inner nonwoven (90))and an outer garment facing surface (outer nonwoven (91)), the first belt further comprising a laterally extending inner edge and a laterally extending outer edge, the outer edge positioned longitudinally outward of the inner edge(see annotated figure below); and a frangible pathway in the first belt extending between the inner edge and the outer edge of the first belt (132).
While Reference fails to disclose a material tear strength of the first substrate, it should be noted that tear strength is a property resulting from the material(s) and/or structure(s) that form the substrate and the frangible pathway. One skilled in the art would already expect a frangible pathway to have a lower tear strength because the frangible pathway comprises weakened/perforated parts to allow the substrate to tear more easily. Per paragraph 0165, the tear strength of the frangible pathway is 1-15N/in. The examiner notes that strength of the tear lines is disclosed to be 1-15 N/in per para. 0165 of Nishikawa. As such Nishikawa discloses a device where the tear strength of the first substrate is greater than the tear strength of the tear line, but fails to specifically teach that the substrate tear strength is at least 2N greater than the frangible pathway tear strength.
Long teaches an absorbent article with a tear away section and is thus considered analogous to the claimed invention. Per paragraph 0058, Long teaches that in example embodiments the tear strength refers to the strength required to tear the pant along desired lines, where Long teaches that said strength should be increased to prevent undesired tearing. To account for this, Long teaches that said tear strength should be suitably at least 25% greater than the threshold force, where the threshold force is the force required to tear the desired tear section (i.e. a perforated line of piece designed to be torn). As such it is interpreted that the tear strength of the pant material compared to the tear strength of a designed tearable part is a result effective variable in that changing the tear strength of the tear line changes the tear strength of the pant itself, by at least 25%. Further, it appears that one of ordinary skill in the art would have had a reasonable expectation of success in modifying the Nishikawa reference to have a first substrate tear strength of at least 25% greater than the tear line strength, 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 prior to the effective filing date of the claimed invention to modify the device of Nishikawa by making the tear strength of the first substrate at least 25% greater than and further at least 2N greater than (where in the tear line strength is 1-15N, at least 25% greater than these values would include at least 2N greater than) 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." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Per paragraph 0135, Nishikawa details using nonwoven webs having a basis weight of less than 15gsm, where said web is similar in basis weights to other SMS webs. The examiner notes that although this nonwoven is directed to being used in the leg cuff Nishikawa details the same nonwovens can be used for various components of the device (para. 0103) and that SMS nonwovens are known to be used for the flaps specifically (para. 0077, 0101). As such it is interpreted that the basis weight of the SMS nonwoven of the flaps is less than 15gsm.
As such, Nishikawa discloses wherein the tear strength of the first belt divided by the substrate basis weight is greater than 0.2 N/gsm (tear strength of 3N/in and a basis weight of 10gsm (3/10=.3), where both values are within the ranges of Nishikawa), wherein the tear strength of the frangible pathway divided by the first basis weight is greater than 0.05 N/gsm and less than 0.15 N/gsm (tear strength of 1N/in and a basis weight of 10gsm (1/10=.1), where both values are within the disclosed range of Nishikawa), and wherein the difference between the material tear strength and the pathway tear strength is a tear strength delta This difference of >1N is interpreted to be tear strength delta), and wherein the tear strength delta divided by the material basis weight is greater than 0.2 N/gsm (delta of 3N/in (>1) and a basis weight of 10gsm (3/10=.3), where both values are within the ranges of Nishikawa). Therefore the calculated ranges overlap with the claimed ranges and as such it would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to use the properties of the materials used in said calculations to reach a tensile strength/basis weight ratio equating to .4, thus within the range of greater than .2. Further, the examiner notes 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.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
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Regarding Claim 13, Nishikawa and Long teach the absorbent article of claim 12, wherein the first belt comprises a longitudinal centerline (Nishikawa 100) and a lateral centerline (see annotated figure below), and wherein at least a portion of the frangible pathway extends at a pathway angle of less than 90 degrees from the lateral centerline of the first belt (see annotated figure below, where the line of weakness intersects the centerline at an angle less than 90).
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Regarding Claim 14, Nishikawa and Long teach the absorbent article of claim 12, wherein the first belt comprises a first substrate and a second substrate (Nishikawa inner and outer nonwoven 90 and 91), wherein the first substrate forms the outer garment facing surface (outer nonwoven 90) and the second substrate forms the inner garment facing surface (inner nonwoven 91), wherein each of the first substrate and the second substrate has a material tear strength according to Trapezoid Tear Strength test method. The examiner notes however that as tear strength is an inherent property to materials, the second substrate of Nishikawa has “a tear strength”. Nishikawa further discloses and wherein second substrate has a different material tear strength than the first substrate (para. 0089). Per paragraph 0089, the nonwovens used for the flaps may comprise layers made from the same or different materials. Therefore using different materials being used for the different layers would result in a different material tear strength between the different layers.
Regarding Claim 15, Nishikawa and Long teach the absorbent article of claim 12, the first belt has a basis weight is less than 45 gsm. Per paragraph 0135, Nishikawa details using nonwoven webs having a basis weight of less than 15gsm, where said web is similar in basis weights to other SMS webs. The examiner notes that although this nonwoven is directed to being used in the leg cuff Nishikawa details the same nonwovens can be used for various components of the device (para. 0103) and that SMS nonwovens are known to be used for the flaps specifically (para. 0077, 0101). As such it is interpreted that the basis weight of the SMS nonwoven of the flaps is less than 15gsm which is within the claimed range.
Regarding Claim 17, Nishikawa discloses the absorbent article of claim 16. The examiner notes that as detailed under the rejection of claim 16, the angle is interpreted to be less than 90 degrees from the lateral centerline (interpreted to be the same as the fiber orientation direction per claim 16). The examiner notes however, that due to the lack of disclosure of the angle it cannot be interpreted that said angle is from 15-60 degrees. Per paragraph 0156-0157, the line of weakness (frangible path) is disclosed to be adjustable, as the shape may be straight or curved, and the orientation may be adjusted to minimize the inboard lateral distance. Per MPEP Section 2144.04 when the only difference between the prior art and claims is a relative dimension, and the device having the claimed relative dimensions would not perform differently from the prior art, the claim is not patentably distinct from the prior art. Therefore, as the prior art device comprises a absorbent article in the same manner as claim 1, where the frangible pathway comprises an angle from the lateral centerline, said line is disclosed to be adjustable, and modifying said angle would achieve the same predictable result of allowing the pathway to be torn, modifying the angle to be between 15 and 60 degrees would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention.
Regarding Claim 18, Nishikawa discloses the absorbent article of claim 16. Nishikawa further discloses . Per paragraph 0135, Nishikawa details using nonwoven webs having a basis weight of less than 15gsm, where said web is similar in basis weights to other SMS webs. The examiner notes that although this nonwoven is directed to being used in the leg cuff Nishikawa details the same nonwovens can be used for various components of the device (para. 0103) and that SMS nonwovens are known to be used for the flaps specifically (para. 0077, 0101). Per Nishikawa para. 0165 the frangible pathway tear strength is disclosed to be 1-15N/in. However, the prior art fails to specifically disclose wherein the material tear strength of the first substrate divided by the material basis weight is greater than 0.2 N/gsm, as Nishikawa fails to disclose a specific tear strength of the first substrate.
Long teaches an absorbent article with a tear away section and is thus considered analogous to the claimed invention. Per paragraph 0058, Long teaches that in example embodiments the tear strength refers to the strength required to tear the pant along desired lines, where Long teaches that said strength should be increased to prevent undesired tearing. To account for this, Long teaches that said tear strength should be suitably at least 25% greater than the threshold force, where the threshold force is the force required to tear the desired tear section (i.e. a perforated line of piece designed to be torn). As such it is interpreted that the tear strength of the pant material compared to the tear strength of a designed tearable part is a result effective variable in that changing the tear strength of the tear line changes the tear strength of the pant itself, by at least 25%. Further, it appears that one of ordinary skill in the art would have had a reasonable expectation of success in modifying the Nishikawa reference to have a first substrate tear strength of at least 25% greater than the tear line strength, 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 prior to the effective filing date of the claimed invention to modify the device of Nishikawa by making the tear strength of the first substrate at least 25% greater than (for example 1N greater than for purpose of calculations seen below) (where in the tear line strength is 1-15N, at least 25% greater than these values would include at least 1N greater than) 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." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
As such the ratio of strength to basis weight would be (2-16+ N/in [at least 2N greater than the tear line]) to 0-14gsm. Therefore the calculated ranges overlap with the claimed ranges and as such it would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to use the properties of the materials used in said calculations to reach a tensile strength/basis weight ratio equating to .3, thus within the range of greater than .2. Further, the examiner notes 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.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding Claim 19, Nishikawa discloses the absorbent article of claim 16, wherein the pathway tear strength divided by the material basis weight is greater than 0.05 N/gsm and less than 0.15 N/gsm. Per paragraph 0165, the tear strength of the frangible pathway is 1-15N/in. Per paragraph 0135, Nishikawa details using nonwoven webs having a basis weight of less than 15gsm, where said web is similar in basis weights to other SMS webs. The examiner notes that although this nonwoven is directed to being used in the leg cuff Nishikawa details the same nonwovens can be used for various components of the device (para. 0103) and that SMS nonwovens are known to be used for the flaps specifically (para. 0077, 0101). As such it is interpreted that the basis weight of the SMS nonwoven of the flaps is less than 15gsm. Therefore, Nishikawa discloses wherein the tear strength of the first belt divided by the substrate basis weight is greater than 0.2 N/gsm (tear strength of 3N/in and a basis weight of 10gsm (3/10=.3), where both values are within the ranges of Nishikawa), wherein the tear strength of the frangible pathway divided by the first basis weight is greater than 0.05 N/gsm and less than 0.15 N/gsm (tear strength of 1N/in and a basis weight of 10gsm (1/10=.1), where both values are within the disclosed range of Nishikawa). Therefore the calculated ranges overlap with the claimed ranges and as such it would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to use the properties of the materials used in said calculations to reach a tear line tensile strength/basis weight ratio equating to .1, thus within the range of between .05 and .15. Further, the examiner notes 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.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding Claim 20, Nishikawa discloses the absorbent article of claim 16, where the substrate tear strength is greater than the frangible pathway tear strength. However, Nishikawa fails to disclose a material tear strength of the first substrate being greater than the pathway tear strength of the first frangible pathway by at least 4N.
Long teaches an absorbent article with a tear away section and is thus considered analogous to the claimed invention. Per paragraph 0058, Long teaches that in example embodiments the tear strength refers to the strength required to tear the pant along desired lines, where Long teaches that said strength should be increased to prevent undesired tearing. To account for this, Long teaches that said tear strength should be suitably at least 25% greater than the threshold force, where the threshold force is the force required to tear the desired tear section (i.e. a perforated line of piece designed to be torn). As such it is interpreted that the tear strength of the pant material compared to the tear strength of a designed tearable part is a result effective variable in that changing the tear strength of the tear line changes the tear strength of the pant itself, by at least 25%. Further, it appears that one of ordinary skill in the art would have had a reasonable expectation of success in modifying the Nishikawa reference to have a first substrate tear strength of at least 25% greater than the tear line strength, 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 prior to the effective filing date of the claimed invention to modify the device of Nishikawa by making the tear strength of the first substrate at least 25% greater than and further at least 4N greater than (where in the tear line strength is 1-15N, at least 25% greater than these values would include at least 4N greater than) 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." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
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.
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/MATTHEW WRUBLESKI/Examiner, Art Unit 3781 /ARIANA ZIMBOUSKI/Primary Examiner, Art Unit 3781
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