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 Objections
Claims 1, 3 and 5-8 are objected to because of the following informalities:
Excess use of hyphens and incorrect capitalization when not needed:
For example:
In Claim 1: Average-Strand-Spacing, Average-Dtex, Dtex-to-Spacing-Ratio, Percent-Contact-Areas;
In Claim 3: Dtex-to-Spacing-Ratio;
In Claim 5: Percent-Contact-Area, Force-Relaxation, Cantilever-Bending, Pressure-Under-Strand and Section-Modulus;
In Claim 6: Average-Strand-Spacing
In claim 7: Average-Dtex
In claim 8: Average-Pre-Strain
Appropriate correction is required.
Specification
The disclosure is objected to because of the following informalities:
The same issues with the claim objections are also found throughout the specification. Excess use of hyphens and incorrect capitalization when not needed. Please revise the entire specification and submit a marked up and clean copy of the specification. ¶¶ 0004, 0005, 0009, 0010-0013, 0035-0055, 0064-0070, 0089-0092, 0096, 0110-0111, 0125, 0135, 0154-0186, 0188-0191, 0193-0227, 0229-0237, 0239-0245,0247-0248, 0251, 0281-0284, 0303-0325 etc…please revise the entire specification, these are only some of the paragraphs.
The first paragraph of the specification needs to update the status of the lineage as they all have matured into patents:
16/117,579 which has matured into USPN 11,147,718
15/832 929 which has matured into USPN 11,141,321
15/833,057 which has matured into USPN 11,147,717
15/838,405 which has matured into USPN 11,219,555
15/839,896 which has matured into USPN 11,141,322
15/846,360 which has matured into USPN 10,987,253
15/846,391 which has matured into USPN 10,966,874
17/475,577 which has matured into USPN 11,925,537
15/846,341 which has matured into USPN 11,000,420
15/846,371 which has matured into USPN 11,944,523
15/846,409 which has matured into USPN 11,000,421
15/846,433 which has matured into USPN 10,993,851
15/846,349 which has matured into USPN 11,000,426
15/846,382 which has matured into USPN 10,966,873
Appropriate correction is required.
The abstract of the disclosure is objected to because: Excess use of hyphens and incorrect capitalization when not needed:
Dtex-to-Nonwoven-Basis-Weight- Ratios, Dtex-to-Spacing-Ratios, Void-Area-to-Strand-Area-Ratios, Application-Forces, Sustained-Fit-Load-Forces, and Sustained-Fit-Unload- Forces, In-Bag-Stack- Heights
A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
¶¶ 0011, 0158, 0172, 0182, 0189, 0204, 0206, 0208, 0209, 0240, 0243,0244, 0247-0252,0257, 0258, 0265, 0273, 0287, 0289, 0291, 0295, 0302, 0303, 0305 and 0306 “clastic” should be elastic, appears to be a typo
The use of the terms Spandex, Lycra, Creora, Roica, Dorlastan, Elastane, Lycra Hyfit etc. at ¶¶ 0286-0287, which is a trade name or a mark used in commerce, has been noted in this application. The term should be accompanied by the generic terminology; furthermore, the term should be capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term. All three criteria must be met. Applicant is missing the proper symbols.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
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 and 5 is 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.
In claims 1 and 3, the phrase “Dtex to spacing ratio” is unclear and indefinite. It is not clear whether this is a given dtex to spacing ratio between any two strands or in fact the average dtex to the average strand spacing. This renders the scope of the claim is unclear and thus indefinite.
In claim 5, what does Applicant mean for “percent contact area?” Applicant has not defined what this phrase means and it is not a term of familiarity to the Office. This renders the scope of the claim is unclear and thus indefinite. As there are other options for Claim 5, the Office will await clarity on this matter.
Claim 5 states- The elastomeric laminate of claim 1, further comprising at least one of: a Percent-Contact-Area of at least one of: greater than about 10% at 100 μm, greater than about 20% at 200 μm, and greater than about 30% at 300 μm; a Force-Relaxation from about 5% to about 30%; a Cantilever-Bending of less than about 40 mm; a 2%-98%-Height-Value of <2.2 mm; a Pressure-Under-Strand from about 0.1 to about 1 psi; and a Section-Modulus of from about 2 gf/mm to about 15 gf/mm. These optionally sought limitations are indefinite. The boundaries of the functional language are unclear because the claim does not provide a discernable boundary on what performs these properties or functions. The recited property or function does not follow from the elastomeric structure recited in the claim 1, as such it is unclear whether the function or property requires some other structure or is simply a result of treating the materials in a certain manner. Thus, one of ordinary skill in the art would not be able to draw a clear boundary between what is and is not covered by the claim. See MPEP 2173.05(g) for more information. There could be other factors, including the nature and strength of additional fibers, layers or additives present. Currently, the claim fail to provide a clear-cut indication of the scope of the subject matter embraced by the claims and thus is indefinite.
Dependent claims 2, 4 and 6-8 are objected to as being dependent on a rejected base claim 1.
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 1-8 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, 5, 7, 9, 11, 13, 14 and 15 of USPN 11,147,718 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because the embodiment of the instant claims would be rendered obvious by the embodiments of claims.
Both the instant claims and at least claims 1, 3, 5, 7, 9, 11, 13, 14 and 15 from USPN 11,147,718 require an elastomeric laminate having 3 nonwovens, a plurality of elastic strands, the same or about the same dtex range, same or about the same strand spacing, same or about the same dtex to nonwoven basis weight, same or about the same average pre-strain, same or about the same spacing ratio, bonded and unbonded areas, adhesive attachment between the first and second nonwovens and optional properties such as percent contact area, a force relaxation, cantilever bending, pressure under strand or section modulus and lastly for the same intended use.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1-4 and 6-8 is/are rejected under 35 U.S.C. 103 as being unpatentable over USPUB 2004/219854A1 issued to Groitzsch et al.
Groitzsch et al. teaches a composite fabric and a method for manufacturing the composite fabric that includes at least one planar structure and at least one nonwoven fabric thermally bonded to the planar structure via a plurality of welds arranged in a predetermined pattern. A sheet of parallel elastic threads is disposed between the nonwoven fabric and the planar structure, wherein portions of the elastic threads are embedded in the plurality of welds in a stretched state. The composite fabric can be used for manufacturing hygienic products, in particular diapers, including diaper pants [abstract].
Regarding Claim 1, where Applicant seeks an elastomeric laminate, comprising:
a plurality of elastic strands between first and second nonwovens;
wherein the plurality of elastic strands has an Average-Strand-Spacing from about 0.25 mm to about 4 mm;
wherein the plurality of elastic strands has an Average-Dtex from about 10 to about 400;
wherein the first and second nonwovens are joined together, and wherein a third nonwoven is joined to the second nonwoven, such that the second nonwoven is an intermediate nonwoven;
wherein a Dtex-to-Spacing-Ratio of the plurality of elastic strands is from about 65:1 to about 200:1;
wherein the first and second nonwovens are joined together via an adhesive, and wherein the adhesive overlaps and at least partially surrounds a portion of the plurality of elastic strands;
wherein the second and third nonwovens are joined together and wherein elastic strands are not present between the second and third nonwovens; and
wherein an exterior surface of the third nonwoven and an exterior surface of the first nonwoven have different Percent-Contact-Areas; Applicant is directed to the teachings of Groitzsch et al. who teaches elastomeric laminates [Example 1] comprising;
a plurality of elastic strands between first and second nonwovens [Example 1, ¶¶ 0081, 0099, 0151, 0141 and 0142]. At ¶ 0018 and 0022, Groitzsch et al. teach the use of multiple layers or nonwoven/films, possible layers can also be wet-laid nonwoven fabrics, carded staple fiber nonwoven fabrics, continuous filament nonwoven fabrics, meltblown nonwoven fabrics, spun bond-meltblown-spun bond nonwoven fabrics (SMS), and spun bond-meltblown nonwoven fabrics (SM).
At ¶ 0034, the instant reference teaches that planar structure can be of any nature. This planar structure can be a fibrous sheet material, such as woven fabric, knitted fabric, netting, lattice, and scrim, or, in particular, a nonwoven fabric, or it can be a film, provided that this further planar structure can be welded to the first nonwoven fabric. However, bonding can also be accomplished using bonding agents, such as aqueous dispersions. This serves as the bonding between the first and second nonwoven layers.
At ¶ 0086, the instant reference teaches the composite fabric according to the present invention is made up of at least three layers, two layers of which are composed of nonwoven fabrics between which the parallel elastic threads are incorporated, and at least third layer which covers one of the nonwoven fabrics, and which is preferably a staple fiber nonwoven fabric.
Groitzsch et al. teaches wherein the plurality of elastic strands has an average strand spacing from about 0.25mm to about 4mm [¶ 0141]; The individual threads of the sheets of parallel elastic threads are typically spaced apart by 0.5 to 15.0 mm, preferably by 1.0 to 10.0 mm. [¶ 0069].
Groitzsch et al. teaches wherein the plurality of elastic strands has an average dtex from about 10 to about 400 [¶¶ 0070 and 0141];
Groitzsch et al. teaches wherein the plurality of elastic strands has an average pre-strain from about 50% to about 300%; [Example 1, it follows the speed difference (2.5m/min unwinding/5m min lamination) that the pre-strain is 100%)
Groitzsch et al. teaches wherein a plurality of densified bonds which bonds the first and the second nonwovens together; wherein the densified bonds are discrete and spaced apart from one another and wherein the plurality of densified bonds overlaps and at least partially surrounds portions of the plurality of elastic strands [ figure 1, figure 3 and example 1].
Groitzsch et al. teaches a dtex to nonwoven basis weight ratio of a first elastic strand and of at least one of the first and second nonwovens is from about 1.5 to about 10 [ Example 1, ¶ ¶ 0151, 0141 and 0142] and wherein the elastomeric laminate forms at least a portion of a disposable absorbent garment [¶ 0012].
Groitzsch et al. do not teach that the first and second nonwovens are joined together via an adhesive. They do provide the teaching that they are bonding in an alternative manner. As such, a person having ordinary skill in the art before the effective filing date of the invention would have found an alternative means to bond two nonwovens together. It is well known in the art of the textiles that an adhesive material is an alternative means of bonding to thermal or melt bonding. Groitzsch et al. in the background section show the use of hot-melt adhesive for bonding nonwoven layers and elastic strands to form an elastomeric laminate.
Regarding Claim 2, where Applicant seeks that the elastomeric laminate of claim 1, wherein the second and third nonwovens are joined together via a plurality of bonds, wherein the plurality of bonds are discrete and laterally spaced from each other; Applicant is directed to ¶ 0062, figure 1, figure 3 and Example 1 of the instant reference.
Regarding Claim 3, where Applicant seeks that the elastomeric laminate of claim 1, wherein a Dtex-to-Spacing-Ratio of the plurality of elastic strands is from about 65:1 to about 150:1; Applicant is directed to rationale set forth under claim 1 and 112-2nd rejection.
Regarding Claim 4, where Applicant seeks that the elastomeric laminate of claim 1, wherein the first nonwoven layer has a basis weight from about 6 grams per square meter to about 35 grams per square meter, and wherein the second nonwoven layer has a basis weight from about 6 grams per square meter to about 35 grams per square meter; Applicant is directed to ¶ 0030-0031, where the instant reference teaches 6 to 70 g/m2 for any nonwoven layer.
Regarding Claim 6, where Applicant seeks that the elastomeric laminate of claim 1, wherein the plurality of elastic strands has an Average-Strand-Spacing from about 0.75 mm to about 2.5 mm; The instant reference teaches that average strand spacing is 0.7 mm (18 strands per 2.54cm) and average dtex is 78, corresponding to a dtex to strand spacing ratio of 111.
Regarding Claim 7, where Applicant seeks that the elastomeric laminate of claim 1, wherein the plurality of elastic strands has an Average-Dtex from about 40 to about 250; Applicant is directed to ¶¶ 0070 and 0141, where they teach that the plurality of elastic strands has an average dtex from about 10 to about 400.
Regarding Claim 8, where Applicant seeks that the elastomeric laminate of claim 1, wherein the plurality of elastic strands has an Average-Pre-Strain from about 100% to about 250%; Applicant is directed to Example 1, where the instant reference teaches that the difference in the speed between the unwinding step (2.5 m/min) and lamination step (5m/min) leads to a calculated average pre-strain of 100% .
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. USPUB2004/0158217A1 issued to Wu et al., They disclose a elastic assembly for absorbent garments having a first carrier layer, a second carrier layer, and an elastic layer attached between the first and second carrier layers to impart elasticity to an elasticized portion of the elastic assembly. The elastic layer is made of elastic strands having a decitex of about 600 or less. The elastic strands are arranged generally in parallel with one another and with a spacing of about 1 to about 10 elastic strands per centimeter.
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/Arti Singh-Pandey/
Primary Patent Examiner
Art Unit 1759
asp
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