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 .
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.
Claim(s) 1-2, 4-5, and 12 is/are rejected under 35 U.S.C. 102(a)(1) as being antcipated by Horney (5,599,339).
With respect to claim 1, Horney discloses a diaper assembly comprising an absorbent assembly 10, as shown in figure 1, and an application structure 90, as shown in figure 3. The absorbent assembly comprises a first absorbent body 20 having a first water permeable topsheet 24, a first water impermeable backsheet 26 having a transverse dimension, and a first absorbent core 28, as shown in figure 1. The backsheet 26 further comprises a first outer cover on a garment facing side, as disclosed in column 5, lines 7-8 (i.e. one layer of the composite material comprises the backsheet and the other comprises the outer cover). A second absorbent body 100 is disposed on a garment facing side of the first backsheet 26, as shown in figure 1, and comprises a second water permeable topsheet 124 having a transverse dimension and a second absorbent core 128. A chassis 126 is disposed on a garment facing side of the second absorbent core, as shown in figure 1, and comprises a water impermeable backsheet, as disclosed in column 6, lines 8-9. The transverse dimension T1 of the first water impermeable backsheet 26 is greater than the transverse dimension T3 of the second water permeable topsheet 124, as shown in figure 3. The first outer cover and second topsheet are bonded by a temporary bond 200 that enables removal of the first absorbent body 20 from the remainder of the article, as shown in figure 3 and disclosed in column 11, lines 45-50.
With respect to claim 2, the first outer cover has the same transverse dimension as the first backsheet 26, and therefore the transverse dimension T2 is also greater than T1.
With respect to claim 4, the temporary bond 200 is disposed along transverse edges 130 of the second topsheet 124 extending in a longitudinal direction, as shown in figure 2.
With respect to claim 5, the first backsheet 26 has a longitudinal dimension L1 that is greater than the longitudinal dimension L3 of the second topsheet 124, as shown in figure 2.
With respect to claim 12, the application structure 90 is a fastening structure, as disclosed in column 10, lines 13-15.
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) 3, 6, and 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Horney (5,599,339).
With respect to claim 3, Horney discloses all aspects of the claimed invention with the exception of the chassis backsheet having a transverse dimension T2 that is greater than T3. 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 chassis backsheet of Horney with a transverse dimension T2 that is greater than T3 since it has been held that where the only difference between the prior art and the claimed invention was a recitation of relative dimensions that would not perform differently than the prior art device, the claimed device is not patentably distinct from the prior art device (see MPEP 2144.04(IV)(A)).
With respect to claim 6, Horney discloses the second topsheet 124 comprises front and back longitudinal edge regions 135 within about one third of a transverse dimension of the first outer cover 26 from the longitudinal axis, as shown in figure 2. The front and back longitudinal edge regions 135 are devoid of the temporary bond, as shown in figure 2. Horney discloses all aspects of the claimed invention with the exception of the front and back longitudinal edge regions being within about 5 mm from front and back ends of the first outer cover. 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 front and back longitudinal edge regions of the second topsheet of Horney within 5 mm of the front and back ends of the first outer cover since it has been held that where the only difference between the prior art and the claimed invention was a recitation of relative dimensions that would not perform differently than the prior art device, the claimed device is not patentably distinct from the prior art device (see MPEP 2144.04(IV)(A)).
With respect to claim 11, Horney discloses all aspects of the claimed invention with the exception of the temporary bond having a Peak Force of 16 N or less and an Average Force of 0.3 N or higher. 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 temporary bond of Horney with a Peak Force of 16 N or less and an Average Force of 0.3 N or higher to achieve the predictable result of a bond that is strong enough to hold the first absorbent body in place during use while still allowing the first absorbent body to be detached without damaging the second absorbent body.
Claim(s) 7-8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Horney (5,599,339) in view of Grenier (5,613,964).
With respect to claims 7-8, Horney discloses all aspects of the claimed invention with the exception of auxiliary temporary bonds disposed between at least two temporary bonds and extending in a transverse direction and disposed adjacent the front and back longitudinal edge regions. Grenier discloses an absorbent assembly comprising a first absorbent body 110 and a second absorbent body 112, as shown in figure 1, which are removably attached via temporary bonds. Grenier teaches providing auxiliary temporary bonds 158 disposed between at least two temporary bonds 160, 162, 164, 168, extending in a transverse direction and being disposed adjacent the front and back longitudinal edge regions, as shown in figure 2. 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 article of Horney with auxiliary temporary bonds disposed between at least two temporary bonds and extending in a transverse direction and disposed adjacent the front and back longitudinal edge regions, as taught by Grenier, to achieve the predicable result of additional bonding in the front and back regions to create a more secure attachment.
Claim(s) 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Horney (5,599,339) in view of Tears et al. (2003/0163105).
With respect to claim 9, Horney discloses all aspects of the claimed invention with the exception of a pair of chassis cuffs along transverse edges extending in the longitudinal direction. Tears discloses an absorbent assembly comprising a first absorbent body 10 and a second absorbent body 50 having a chassis layer 64 forming a pair of chassis cuffs shown as elements 58 and 60 in figure 5 to form elasticized leg openings, as disclosed in paragraph [0038]. 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 chassis of Horney with a pair of chassis cuffs along transverse edges extending in the longitudinal direction, as taught by Tears, to form elasticized leg openings to achieve the predictable result of preventing leakage around the legs of the wearer.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 4, 11, and 13 provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 5, and 13 of copending Application No. 18/407,541 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the present claims disclose all limitations of the copending claims and are therefore anticipated by the copending claims.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Allowable Subject Matter
Claims 10 and 13-15 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter: The closest prior art of record, Horney, does not disclose the claimed invention. With respect to claim 10, Horney does not disclose the first absorbent body comprising a first outer cover fold over connected to the first outer cover wherein transverse edges of the first backsheet are sandwiched by the first outer cover and the first outer cover fold over. The first backsheet and first outercover of Horney are a coextensive layer, as disclosed in column 5, lines 7-8, and Horney does not disclose nor reasonably suggest modifying the outer cover to include the claimed structure. With respect to claims 13-15, Horney does not disclose the application structure is an elastic belt. Horney discloses an application structure in the form of adhesive for attaching the absorbent assembly to an undergarment, and does not disclose nor fairly suggest a belt structure comprising side seams.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. U.S. Patents and Publications 8,702,673; 7,264,615; and 5,236,428 disclose diaper articles having first and second absorbent bodies.
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.
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/CATHARINE L ANDERSON/Primary Examiner, Art Unit 3781