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 .
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, a portion of the main body from the first end to the second end, another portion of the main body from the first end to the second end, first gusset, pocket of the first gusset, second gusset, pocket of the second gusset and free edge must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1, 3-10 and 12 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 1 and 8 recite a "three o’clock position" and a " nine o’clock position". The scope of the claim is unclear because it is not clear the point of reference for a "three o’clock position" and a " nine o’clock position" cannot be determined. While the claim recites that these positions are measured relative to an elastic insertion hole, the claim does not reasonably provide for any reference for determining where these positions start in order to determine where a "three o’clock position" and a " nine o’clock position" would fall. Correction and/or clarification are required.
Claim 1 recites the limitation "the elastic insertion hole" in line 11. There is insufficient antecedent basis for these limitations in the claim.
Additionally, with respect to claim 1, the scope of the claim is unclear because the claim recites “two circular leg insertion openings” in line 3, “elastic leg insertion hole” in lines 9-10 and “elastic insertion hole” in line 11. It is not clear if these elements all refer to the same leg opening or different openings/hole.
Correction and/or clarification are required.
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.
Claims 1, 3-10 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Ekstrom (US 2009/0216209) and further in view of Yip et al. (US 11,154,431).
With reference to claim 1, Ekstrom discloses a reusable, protective diaper [0002], comprising:
a main body (see figures) including a circular elastic waist opening [0027] configured to fit around a waist of a user [0025] and two circular elastic leg insertion openings (figure 6) each to receive therethrough a respective leg of a user [0030], one side of the main body being configured to open and close by at least two sets of snaps vertically attached thereto (figure 5) such that when the sets of snaps are open the circular elastic waist opening is broken and one of the two circular leg insertion openings is broken (figure 1) and when the at least two sets of snaps are closed the circular waist opening is formed and one of the two circular leg insertion openings is formed (figure 5); and
and a gusset (figure 6) sewn to a lower half of an inner circumferential section of each elastic leg insertion hole [0032] wherein the gusset forms a pocket with a free edge spaced away from the lower half of the inner circumferential section of the corresponding elastic leg insertion hole (figure 6), the gusset and the pocket forming to form an enhanced contact with the leg of a user to block particulate matter from leaking from inside the diaper to outside the diaper as set forth in [0030].
The difference between Ekstrom and claim 1 is the explicit recitation that the gusset is sewn from approximately a three o'clock position to approximately a nine o'clock position relative to the elastic insertion hole.
Ekstrom discloses that the width of the elastic members which form portions of the gusset and are sewn within the article have a length of approximately 5.5 inches.
While Ekstrom does not explicitly reference a specific position, It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the position of the elastic as desired because Ekstrom recognizes that the diaper may be sized accordingly for different users [0031] and that the other sizes of elastic are usable as set forth in [0032]. The sewing position would have reasonably been expected to change based on either the size of the article and/or the length of the elastic being used. Additionally, Ekstrom fails to explicitly recite a swim diaper.
Yip et al. (hereinafter “Yip”) discloses an analogous absorbent article in the form of a swim diaper as set forth col. 4, lines 41-42.
It would have been obvious to one of ordinary skill in the art at the time of the invention to provide the article of Ekstrom in the form of a swim diaper as taught by Yip because Ekstrom is concerned with providing a reusable diaper and a swim diaper is one type of reusable diaper as taught by Yip in col. 4, lines 41-42.
With reference to claims 3-4 and 9, Ekstrom teaches the invention substantially as claimed as set forth in the rejection of claim 1.
The difference between Ekstrom and claims 3-4 is the provision that the main body is formed of a specific material.
Yip teaches an analogous diaper wherein the main body and/or gusset are formed of a waterproof coated bonded polyurethane knitted polyester material as set forth in col. 6, lines 23-30 and in col. 11, lines 52-60.
It would have been obvious to one of ordinary skill in the art at the time of the invention to provide the main body and/or gusset of a specific type (i.e., a waterproof coated bonded polyurethane knitted polyester material) as desired because Ekstrom discloses the general concept of providing a polyurethane laminate material (PUL) as set forth in [0036] and providing specific materials of the PUL as desired would have been within the level of ordinary skill in the art.
With reference to claim 5, Ekstrom discloses a diaper wherein the circumferential elastic waist opening includes an elastic waist seam (42) to elastically surround the waist of a user and provide a secure fit with the waist of the user as set forth in [0032,0037] and as shown in figures 1-2 and 4.
With respect to claim 6, Ekstrom discloses a diaper wherein the elastic waist seam includes elastic material sewn to an inside of a waist region as set forth in [0037-0038].
Regarding claims 7 and 10, Yip discloses a diaper wherein the at least two sets of snaps attached vertically include four snaps attached vertically (i.e., left and right sides) as shown in figure 5.
With reference to claim 8, see the rejection of claims 1, 3-4 and 9.
With respect to claim 12, see the rejection of claim 6.
Response to Arguments
Applicant’s arguments with respect to claims 1, 3-10 and 12 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
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 MICHELE M KIDWELL whose telephone number is (571)272-4935. The examiner can normally be reached Monday-Friday, 7AM-4PM EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Rebecca Eisenberg can be reached at 571-270-5879. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MICHELE KIDWELL/ Primary Examiner, Art Unit 3781
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