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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 May 1, 2025 has been entered.
Claims 31-33, 35, 37-46, and 51-52 are currently pending in the above identified application.
Claim Rejections - 35 USC § 102 /103
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.
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.
Claims 31-33, 37-42, 44-46, and 51-52 are rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over US Pub. No. 2014/0088535 to Xu.
Regarding claims 31-33, 37-42, 44-46, and 51-52, Xu teaches a method of forming a nonwoven fabric comprising forming a plurality of nonwoven webs comprising at least a layer of fibers (respective fibers) that are made of a composition comprising a first polyolefin, specifically a polypropylene homopolymer, a second polyolefin that is different than the first polyolefin, and a softness enhancer additive (liquid-barrier-enhancing-additive) containing an unsaturated amide, such as erucamide or behenamide (claim 31) (Xu, abstract, , para 0083, 0040, 0056, 0123-0138), reading on a plurality of respective fibers including a polymer component consisting of polypropylene and an additive component, specifically the second polyolefin and softness enhancer additive, dispersed through the polymer component, specifically the polypropylene homopolymer. Xu teaches the composition being at least 80% by weight of the polypropylene at least 10% by weight of the propylene copolymer (Id., para 0121), indicating that the composition forming the fibers would have the propylene copolymer and softness enhancer dispersed through the polypropylene homopolymer. Xu teaches the nonwoven fabric being a SMS material comprising a spunbonded (first outermost layer), a melt-blown (at least one interior nonwoven layer) and a further spunbonded stratum or layer (second outermost layer) (Id., para 0083, 0040, 0056, 0123-0138), reading on the plurality of nonwoven webs including two outermost layers and one or more interior layers between the two outermost layers. Xu teaches an exterior spunlaid batt to contact wearer (at least one of the two outermost layers) being formed of a plurality of fibers (respective fibers) comprising a polymer composition comprising a softness enhancer additive (liquid-barrier-enhancing-additive) containing an unsaturated amide, such as erucamide or behenamide (claim 31), extruding the composition through spinnerets to form fibers into a batt, such as a spunlaid batt (melt-spinning) (claim 32), then calender-bonding (consolidating) the batt to form a nonwoven web (Xu, abstract, para 0123-0138), reading on at least one or the two outermost layers comprising a plurality of respective fibers and melt-spinning the polymer melt to form a plurality of meltspun filaments (claim 32), and consolidating the plurality of nonwoven webs to provide the nonwoven fabric. Regarding the behenamide and erucamide being a liquid-barrier-enhancing-additive, the limitation is a property of the material. In general, a limitation is inherent if it is the “natural result flowing from” the explicit disclosure of the prior art. Schering Corp. v. Geneva Pharms., Inc., 339 F.3d 1373, 1379 (Fed. Cir. 2003). Therefore, although the prior art does not disclose the specifically behenamide and ercamide being a liquid-barrier-enhancing-additive, the claimed properties are deemed to be inherent to the structure in the prior art since the prior art teaches an invention with a substantially similar structure and chemical composition as the claimed invention. Products of identical structure and composition cannot have mutually exclusive properties. The burden is on the Applicants to prove otherwise.
Regarding claims 33, Xu teaches the softness enhancer additive being between 0.05% to 1% by weight of the fiber (Xu, para 0123).
Regarding claims 37-38 and 40, Xu teaches the nonwoven web being a SMS material comprising a spunbonded (first outermost layer), a melt-blown (at least one interior nonwoven layer) and a further spunbonded stratum or layer (second outermost layer) (Xu, para 0083, 0040, 0056), reading on the method further comprising forming at least one interior nonwoven layer including a first interior nonwoven layer disposed between the first outermost layer and the second outermost layer.
Regarding claim 38-39 and 52, Xu teaches the nonwoven material may be made with the composition previously described to form one or more individual elements and being advantageous to form with the nonwoven element in direction contact with the wearer’s skin (Xu, para 0133), reading on the softness enhancer additive (LBEA) may be present in additional layer, such as the interior meltblown layer (claim 38) as well as outermost layer, but not required and therefore the interior layer(s) can be devoid of the LBEA (claim 39, 52).
Regarding claims 41-42, Xu teaches the fiber having cross-sectional shapes other than round to increase opacity (Xu, para 0137), reading on the first outermost layer comprising a first plurality of spunbond fibers and the second outermost layer comprising a second plurality of spunbond fibers, wherein the first plurality of fibers, the second plurality of fibers or both comprise a non-round cross-section.
Regarding claim 44-46 and the claimed properties of greater low surface tension strike through value with the slip agent (LBEA) than a comparative nonwoven fabric of the same construction devoid of the slip agent (LBEA) (claim 44), the low surface tension strike through value that is from about 10% to 60% greater than a comparative nonwoven fabric of the same construction devoid of the slip agent (LBEA) (claim 45), and the nonwoven fabric comprising a low surface strike through value from about 10 to about 80 second (claim 46), in general, a limitation is inherent if it is the “natural result flowing from” the explicit disclosure of the prior art. Schering Corp. v. Geneva Pharms., Inc., 339 F.3d 1373, 1379 (Fed. Cir. 2003). Therefore, although the prior art does not disclose these features explicitly, the claimed properties are deemed to be inherent to the structure in the prior art since Xu teaches an invention with a substantially similar structure and chemical composition as the claimed invention, including the SMS structure, wherein the outermost spunbond layers and, optionally, the interior meltblown comprises the same amide material the claimed concentrations. Products of identical structure and composition cannot have mutually exclusive properties. The burden is on the Applicants to prove otherwise.
Regarding claim 51, Xu teaches the nonwoven having a basis weight from 8 to 35 gsm (Xu, para 0133).
Claim Rejections - 35 USC § 103
Claims 31-33, 37-42, 44-46, and 51-52 are rejected under 35 U.S.C. 103 as obvious over US Pub. No. 2014/0088535 to Xu, as applied to claims 31-33, 37-42, 44-46, and 51-52 above.
Regarding claims 31-33, 35, 37-42, 44-46, and 51-52, in the event it is shown that Xu does not disclose the claimed invention with sufficient specificity, the invention is obvious because Xu discloses the claimed constituents and discloses that they may be used alternatively or in combination. It would have been obvious to one of ordinary skill in the art before the effective filing date to form the nonwoven of Xu, wherein the nonwoven has the claimed structure and plurality of fiber formed from a composition (polymer melt) consisting of the polypropylene homopolymer first polyolefin and additive including the second polyolefin and softness enhancer additive being erucamide or behenamide, motivated by the desire of using predictably suitable nonwoven configuration and composition component taught as predictably suitable for use in the invention of Xu and by the desire to practice the invention of Xu based on the totality of the teaching of Xu.
Claim 35 is rejected under 35 U.S.C. 103 as obvious over US Pub. No. 2014/0088535 to Xu, as applied to claims 31-33, 37-42, 44-46, and 51-52 above, in view of US Pub. No. 2007/0071972 to McCoy.
Regarding claim 35, Xu does not teach the additive, or LBEA, including ethylene bis-stearamide, ethylene bis-oleamide, or a combination thereof, Xu does not explicitly teaches the softness enhancer being ethylene bis-stearamide, ethylene bis-oleamide, or a combination thereof.
However, McCoy teaches a fiber having a softer feel in which a fiber-forming polymer, such as polypropylene, is melt-blended with a bisamide additive, most preferably ethylene bisstearamide (McCoy, abstract, para 0008-0012, 0018). It would have been obvious to one of ordinary skill in the art before the effective filing date to form the nonwoven of Xu, wherein the softness enhancer is the ethylene bisstearamide of McCoy, motivated by the desire of using conventionally known additives predictably suitable for use as softness enhancer in fiber, including polypropylene containing fiber.
Claim 43 is rejected under 35 U.S.C. 103 as obvious over Xu, as applied to claims 31-33, 37-42, 44-46, and 51-52 above, in view of US Pub. No. 2014/0272223 to Cheng.
Regarding claim 43, Xu teaches the nonwoven web comprising a combination of spunbonded and meltblown layers, such as SMMS or SSMMS (Xu, para 0083) and teaches Xu teaches the fiber having cross-sectional shapes other than round to increase opacity (Xu, para 0137). Xu teaches the nonwoven being used in a diaper (Id., para 0098-0112).
Xu does not appear to explicitly teach two outermost spunbond layer having the claimed cross-section.
However, Cheng teaches meltblown nonwoven are often added to spunlaid nonwoven to form SM, SMS, SSMMS, SSMMSS nonwoven substrate or other substrate which combine that attributes of S and M nonwoven structure, such as strong nonwoven substrates with some fluid barrier properties and the same can be done with finer fiber layer denominated with “N” to make SMNMS, SSMNS, SSMNNS, or other suitable combination of layers, suitable for use in a diaper (Cheng, abstract, para 0064-0067, 0074-0083).
It would have been obvious to one of ordinary skill in the art before the effective filing date to form the nonwoven of Xu, wherein the nonwoven has a SSMSS structure as taught by Cheng with the outermost having a non-round cross-section as taught by Xu, motivated by the desire of using conventionally known combination of spunbond with meltblown layers predictably suitable for use in diaper applications and by the desire to impart opacity to the outermost layer as taught by Xu. The resulting structure reads on the claimed structure with a, b, c, e, and f being 1 and d being 0.
Response to Arguments
Applicant's arguments filed November 1, 2024 have been fully considered but they are not persuasive with regards to the application of Xu.
Applicant argues, with regards to the application of Xu, that the fibers of Xu include a first polyolefin, a second polyolefin being a propylene copolymer that is different from the first polyolefin, and a softness enhancer that may comprise an amide, and therefore does not teach or suggest at least one of the two outermost nonwoven layers comprising a plurality of respective fiber formed from a polymer melt consisting of (i) a polymer component consisting of a polypropylene homopolymer, a polyethylene, a polyamide, or any combination thereof, and (ii) an additive component dispersed throughout the polymer component, wherein the additive component includes a liquid-barrier-enhancing-additive (LBEA) as recited in independent claim 31. Examiner respectfully disagrees. Xu teaches the second polyolefin being a propylene homopolymer and the amide being behenamide and ercamide, reading on fibers including a polymer component consisting of polypropylene homopolymer and an additive including behenamide and ercamide. Behenamide and erucamide would inherently exhibit liquid-barrier-properties as having the same chemical composition and structure as claimed. Applicant has provided no evidence to the contrary. The first polyolefin is contained as a majority component in an amount of at least 80% by weight of the composition and therefore second polyolefin can correspond to the additive component. If Applicant is arguing that the presence of the second polyolefin is excluded from the claim, Applicant’s arguments are not commensurate in scope with the claim limitations as the additive includes the LBEA and is therefore open to the presence of additionally components, such as the second polyolefin, as long as the additional components are dispersed throughout the polymer component. Limiting the plurality of respective fibers formed from a polymer melt consisting of a polymer component consisting of a polypropylene homopolymer, a polyethylene, a polyamide, or any combination thereof and (ii) an additive component dispersed through the polymer component, wherein the additive component consists of a liquid-barrier-enhancing-additive (LBEA) consisting of erucamide, oleamide, stearamide, behenamide, one or more bis-amides, oleyl palmitamide, stearyl erucamide, or any combination thereof would align the scope of the claims with Applicant’s arguments.
Conclusion
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/JENNIFER A GILLETT/Examiner, Art Unit 1789
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