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 § 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 1-15 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.
Claim 1 recites the following limitations:
"the wearer facing side of the topsheet" in line 6
“the longitudinal dimension of the absorbent body” in lines 13-14
There is insufficient antecedent basis for these limitations in the claim.
Claim 2 recites the following limitations:
"the distance" in lines 1 and 3
There is insufficient antecedent basis for this limitation in the claim.
Claim 3 recites the following limitations:
"the longitudinal axis" in line 2
There is insufficient antecedent basis for this limitation in the claim.
Claim 4 recites the following limitations:
"the longitudinal axis" in lines 2-3
There is insufficient antecedent basis for this limitation in the claim.
With respect to claim 5, the language “at least about” and “no more than about” in line 3 of the claim renders the claim indefinite because the scope of the claim cannot be determined. The language “at least” and “no more than” are definitive parameters while the “about” language suggests an approximation. Therefore, the scope of the claim has not been clearly defined.
Correction and/or clarification are required.
Claim 6 recites the limitation "the same material" in line 3. There is insufficient antecedent basis for this limitation in the claim.
Claim 7 recites the limitation "the longitudinal elastic element" in line 2. There is insufficient antecedent basis for this limitation in the claim. Previous recitations refer to a “back longitudinal elastic element”. It is unclear if "the longitudinal elastic element" of claim 7 is the same as the previously recited element or is intended to represent a different element.
Correction and/or clarification are required.
Claim 8 recites the following limitations:
"the wearer facing side of the topsheet" in line 6
“the longitudinal dimension of the absorbent body” in lines 13-14
There is insufficient antecedent basis for these limitations in the claim.
Claim 9 recites the following limitations:
"the distance" in lines 1 and 3
There is insufficient antecedent basis for this limitation in the claim.
Claim 10 recites the following limitations:
"the longitudinal axis" in line 2
There is insufficient antecedent basis for this limitation in the claim.
Claim 11 recites the following limitations:
"the longitudinal axis" in lines 2-3
There is insufficient antecedent basis for this limitation in the claim.
With respect to claim 12, the language “at least about” and “no more than about” in lines 3-4 of the claim renders the claim indefinite because the scope of the claim cannot be determined. The language “at least” and “no more than” are definitive parameters while the “about” language suggests an approximation. Therefore, the scope of the claim has not been clearly defined.
Correction and/or clarification are required.
Claim 13 recites the limitation "the same material" in line 3. There is insufficient antecedent basis for this limitation in the claim.
Claim 14 recites the limitation "the longitudinal elastic element" in line 2. There is insufficient antecedent basis for this limitation in the claim. Previous recitations refer to a “front longitudinal elastic element”. It is unclear if "the longitudinal elastic element" of claim 14 is the same as the previously recited element or is intended to represent a different element.
Correction and/or clarification are required.
In claim 15, claim limitation “fastening means” invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function.
The instant application discloses that “fastening means” comprises elongate members transversely protruding from left and right side edges of the back region and fastenable with a receiving member.
The structure described in the specification does not perform the entire function in the claim. While the structure is mentioned, it does not set forth any elements which fasten. The structure is only deemed fastenable with no clear linkage between the structure and the act and/or function.
Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
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 1-15 are rejected under 35 U.S.C. 103 as being unpatentable over Nakajima et al. (US 2011/0098666).
With reference to claim 1, Nakajima et al. (hereinafter “Nakajima”) discloses an absorbent body [0054] 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 3-4), comprising:
1) a water permeable topsheet (24);
2) a water impermeable backsheet (53);
3) an absorbent core (25) disposed between the topsheet and the backsheet (figure 6);
4) a composite isolation sheet (3) bonded to the wearer facing side of the topsheet (figure 2), the composite isolation sheet comprising:
a pair of inner cuffs (30,31) having a pair of elasticized side edges (see annotated figure 4 below);
a back portion in the back region (8) 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 3 below);
d) a back longitudinal elastic element (39) disposed on the back portion, wherein the longitudinal elastic element extends substantially in the longitudinal direction as set forth in figure 3.
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The difference between Nakajima and claim 1 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.
Nakajima provides an article with a back portion (8) serving as a back waist region and defining a back through hole as set forth in [0064].
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 2, Nakajima teaches the invention substantially as claimed as set forth in the rejection of claim 1.
The difference between Nakajima and claim 2 is the provision that a distance represented as B3 is from about 30% to about 85% of a distance represented as B2.
Nakajima provides an article with a longitudinal elastic element (39). 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 B2 and/or B3 as desired in order to provide the desired article that remains in close contact with a wearer without causing skin troubles and/or undesirable leakage as taught by Nakajima in [0004-0005].
With reference to claims 3 and 10, Nakajima discloses an absorbent body wherein the longitudinal elastic element (39) is an elastic body [0065] extending along a longitudinal axis between the back longitudinal end point towards the back end and between the front longitudinal end point towards the front end (cl. 10) as shown in figures 3-4.
Regarding claims 4 and 11, Nakajima discloses an absorbent body wherein the back longitudinal elastic element is an even number of elastic bodies/strands (left and right 39) extending parallel to the longitudinal axis and disposed in a line symmetric position about the longitudinal axis as shown in figures 3-4.
With reference to claim 5, Nakajima teaches the invention substantially as claimed as set forth in the rejection of claim 1.
The difference between Nakajima and claim is the provision that the elastic bodies have a density of about 1100 dtex or less, and wherein the elastic strands are disposed in transverse distance with each other of at least about 2mm to no more than about 4mm.
Initially, it is noted that a density of 1100 dtex or less would encompass zero, and therefore, would not require the disclosure of a dtex by the prior art.
Additionally, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the density and distance of the elastic bodies to provide the desired contractile force of the article in view of [0080-0081] of Nakajima which recognizes that the strength and/or the positioning of the elastic bodies is utilized to control the through holes.
As to claim 6, Nakajima teaches an absorbent body wherein the composite isolation sheet comprises an comprises an inner cuff part for forming the inner cuffs, and a back part for forming the back portion, and wherein the inner cuff part and the back part are made of the same material (i.e., continuous areas) as shown in annotated figure 4 above.
With respect to claim 7, Nakajima discloses an absorbent body wherein the back portion is made by an outer back portion sheet and an inner back portion sheet, and wherein the longitudinal elastic element is sandwiched between the outer back portion sheet and the inner back portion sheet as set forth in [0065].
With reference to claim 8, Nakajima discloses an absorbent body [0054] 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 3-4), comprising:
1) a water permeable topsheet (24);
2) a water impermeable backsheet (53);
3) an absorbent core (25) disposed between the topsheet and the backsheet (figure 6);
4) a composite isolation sheet (3) bonded to the wearer facing side of the topsheet (figure 2), the composite isolation sheet comprising:
a pair of inner cuffs (30,31) having a pair of elasticized side edges (see annotated figure 4 above);
a front portion in the front region (7) 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 3 above);
d) a front longitudinal elastic element (39) disposed on the front portion wherein the longitudinal elastic element extends substantially in the longitudinal direction as set forth in figure 3.
The difference between Nakajima and claim 8 is the provision that the front portion has a longitudinal dimension B1 of from about 5% to about 35% of the longitudinal dimension of the absorbent body.
Nakajima provides an article with a front portion (7) serving as a front waist region and defining a front through hole as set forth in [0064].
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 back hole dimension.
With reference to claim 9, Nakajima teaches the invention substantially as claimed as set forth in the rejection of claim 8.
The difference between Nakajima and claim 9 is the provision that a distance represented as F3 is from about 30% to about 85% of a distance represented as F2.
Nakajima provides an article with a longitudinal elastic element (39). 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 without causing skin troubles and/or undesirable leakage as taught by Nakajima in [0004-0005].
Regarding claim 12, see the rejection of claim 5.
As to claim 13, Nakajima teaches an absorbent body wherein the composite isolation sheet comprises an comprises an inner cuff part for forming the inner cuffs, and a front part for forming the front portion, and wherein the inner cuff part and the front part are made of the same material (i.e., continuous areas) as shown in annotated figure 4 above.
With respect to claim 14, Nakajima discloses an absorbent body wherein the front portion is made by an outer front portion sheet and an inner front portion sheet, and wherein the longitudinal elastic element is sandwiched between the outer back portion sheet and the inner back portion sheet as set forth in [0065].
As to claim 15, Nakajima discloses fastening members (57) as set forth in [0086].
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 1-15 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14 of copending Application No. US 18/474,560 (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 and 8 of the instant application can be found in claims 1-2 of the reference application.
The limitations of claims 2 and 9 of the instant application can be found in claim 5 of the reference application.
The limitations of claims 3 and 10 of the instant application can be found in claim 1 of the reference application.
The limitations of claims 6-7 and 13-14of the instant application can be found in claims 12-13 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 claim 15 of the instant application can be found in claim 14 of the reference application.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Suzuki et al. (US 2009/0005752) discloses an absorbent article capable of separating urine and feces.
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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/MICHELE KIDWELL/ Primary Examiner, Art Unit 3781