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.
(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.
Claims 1 is rejected under 35 U.S.C. 102(a)(1)(2) as being anticipated by Hoffman et al. (US 2004/0092900).
With reference to claim 1, Hoffman et al. (hereinafter “Hoffman”) discloses an absorbent body for an absorbent article having a transverse direction, a longitudinal direction, a front end, a back end, a front region, a back region, a center region, a garment facing side, and a wearer facing side (figures 1-3), comprising:
1) a water permeable topsheet (23);
2) a water impermeable backsheet (26);
3) an absorbent core (28) disposed between the topsheet and the backsheet (figure 3);
4) a composite isolation sheet (24) bonded to the wearer facing side of the topsheet [0154], the composite isolation sheet comprising:
a) a front portion in the front region (36) having a front longitudinal end point and a pair of front opening edges, wherein the pair of front opening edges are not elasticized (see annotated figure 2 below);
b) a center portion in the center region having a pair of side edges which are elasticized in the longitudinal direction (see annotated figure 3 below);
c) a back portion in the back region (38) having a back longitudinal end point and a pair of back opening edges, wherein the pair of back opening edges are not elasticized (see annotated figure 2 below);
d) a longitudinal elastic element (31,32) disposed on at least one of the front portion and the back portion, wherein the longitudinal elastic element extends substantially in the longitudinal direction (figure 2); and
e) an opening defined by the pair of front opening edges, the pair of side edges, and the pair of back opening edges, wherein the opening extends between the pair of front opening edges to the pair of back opening edges, and wherein the opening is configured to accommodate an anal and urethal orifice of a wearer as shown in annotated figure 2 below.
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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.
Claims 2-18 are rejected under 35 U.S.C. 103 as being unpatentable over Hoffman et al. (US 2004/0092900).
With reference to claim 2, Hoffman teaches the invention substantially as claimed as set forth in the rejection of claim 1.
The difference between Hoffman and claim 2 is the provision that the front portion has a longitudinal dimension F1 of from about 22% to about 50% of the longitudinal dimension of the absorbent body.
Hoffman provides an article with a front portion serving as a front waist region and defining a front through hole as shown in figure 2.
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the length of the front portion as desired in order to provide the desired waist length and/or front hole dimension.
As to claims 3 and 8, Hoffman discloses an absorbent body wherein the longitudinal elastic element (31,32) is disposed on the front portion and the back portion (cl. 8) as shown in figure 2.
With reference to claim 4, Hoffman teaches the invention substantially as claimed as set forth in the rejection of claim 1.
The difference between Hoffman and claim 4 is the provision that when the front longitudinal elastic element is fully stretched, the opening area in the front region is from about 5% to about 30% of the composite isolation sheet in the front region.
Hoffman provides an article with a longitudinal elastic element (31,32). The elastic element would be expected to be capable of fully stretching as it is an elastic material.
It would have been obvious to one of ordinary skill in the art at the time of the invention to adjust the percentage of the opening area utilizing the elastic elements as desired because the general concept has already been set forth by the prior art and the change in size and/or shape of the element is considered to be within the level of ordinary skill in the art.
With reference to claim 5, Hoffman teaches the invention substantially as claimed as set forth in the rejection of claim 1.
The difference between Hoffman and claim 5 is the provision that a represented as F3 is from about 30% to about 85% of a distance represented as F2.
Hoffman provides an article with a longitudinal elastic element (31,32). The elastic element would be expected to be capable of incremental stretching as well as fully stretching as it is an elastic material.
It would have been obvious to one of ordinary skill in the art at the time of the invention to adjust the relationship between the distances represented as F2 and/or F3 as desired in order to provide the desired article that remains in close contact with a wearer as taught by Hoffman in [0151].
With reference to claims 6 and 10, Hoffman discloses an absorbent body wherein the front longitudinal elastic element is an elastic body extending along a longitudinal axis between the front longitudinal end point towards the front end and between the back longitudinal end point towards the back end (cl. 10) as shown in figure 2.
With reference to claim 7, Hoffman teaches the invention substantially as claimed as set forth in the rejection of claim 1.
The difference between Hoffman and claim 7 is the provision that the back portion has a longitudinal dimension B1 of from about 5% to about 35% of the longitudinal dimension of the absorbent body.
Hoffman provides an article with a back portion serving as a back waist region and defining a back through hole as shown in figure 2.
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the length of the back portion as desired in order to provide the desired waist length and/or back hole dimension.
With reference to claim 9, see the rejection of claim 5.
As to claim 11, Hoffman discloses an absorbent body wherein the back portion is devoid of a longitudinal elastic element at least in opening as shown in figure 2.
Regarding claim 12, Hoffman discloses an absorbent body wherein the composite isolation sheet comprises an inner cuff part and a continuous part, wherein the pair of elasticized side edges are formed by the inner cuff portion, wherein the continuous part forms the front portion and the back portion, and wherein the continuous part is connected in the longitudinal direction along the inner cuff part as shown in annotated figure 1 below.
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With reference to claim 13, Hoffman teaches the invention substantially as claimed as set forth in the rejection of claim 1.
The difference between Hoffman and claim 13 is the provision that the front part and the back part are not connected.
It would have been obvious to one of ordinary skill in the art at the time of the invention to provide non-connected front and back parts since it has been held that the mere separation of parts previously taught as integral is considered to be within the level of ordinary skill in the art.
As to claim 14, Hoffman discloses fastening members (27,29) as shown in figure 1.
Regarding claim 15, Hoffman discloses an absorbent article comprising an elastic belt [0032] to define the absorbent article as a pant as set forth in [0001].
With respect to claim 16, Hoffman discloses an absorbent body wherein the longitudinal elastic element disposed on at least one of the front portion and the back portion does not extend across a transverse centerline of the absorbent body as shown in figure 2.
As to claim 17, Hoffman discloses an absorbent body wherein each of the pair of front opening edges extend transversely from an outer position distal a longitudinal centerline to an inner position proximate the longitudinal centerline as shown in figure 2.
With reference to claim 18, Hoffman discloses an absorbent body wherein each of the pair of back opening edges extend transversely from an outer position distal a longitudinal centerline to an inner position proximate the longitudinal centerline as shown in figure 2.
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 1-18 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-15 of copending Application No. US 18/474,571 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because both the instant application and the reference application are directed to an absorbent body including a composite isolation sheet.
The limitations of claims 1-4 of the instant application can be found in claim 8 of the reference application.
The limitations of claim 5 of the instant application can be found in claim 9 of the reference application.
The limitations of claim 6 of the instant application can be found in claim 10 of the reference application.
The limitations of claims 7-8 and 10 of the instant application can be found in claim 1 of the reference application.
The limitations of claim 9 of the instant application can be found in claim 2 of the reference application.
The limitations of claims 12-13 of the instant application can be found in claim 6 of the reference application
The limitations of claim 14 of the instant application can be found in claim 15 of the reference application.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
Applicant’s arguments with respect to claims 1-18 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.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
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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