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 .
Response to Arguments
Applicant’s arguments, filed 01 July 2026, with respect to the rejection(s) of claim(s) 1-20 under 35 USC 102 and 103 have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. Specifically, Applicant has amended the claims to further limit the waist gasketing element However, upon further consideration, a new ground(s) of rejection is made in view of Mueller (US 2018/0042786).
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.
Claim(s) 1-12, 17-20 are rejected under 35 U.S.C. 103 as being unpatentable over Mueller (US 2018/0042786).
Regarding claim 1, Mueller discloses an array of personal hygiene articles (10a, 10b, 10c, figure 8) comprising:
at least a first article (10a) and a second article (10b), the second article being adapted for wearers having a larger size than the first article ([0088]);
each article comprising: a longitudinal centerline (100, figure 1); a transversal centerline (110); a chassis (20, figure 1) comprising a topsheet (24), a backsheet (26), an absorbent core (28), a pair of back ears (34) attached to and extending transversally outwardly from the chassis (figure 1, [0056]); and a waist gasketing element (80, [0087]) disposed on a wearer-facing side of the article between the back ears (figure 1);
wherein the waist gasketing element comprises a first longitudinally extending side edge (left side edge of 80) and a second longitudinally extending side edge (right side edge of 80); wherein the first longitudinally extending side edge and the second longitudinally extending side edge are both positioned laterally between the back ears (figure 1);
wherein the back ears each have an innermost edge having a length (Lf/Ls);
wherein the waist gasketing element has a length measured along the longitudinal centerline (length of 80);
wherein the ratio of the length of the innermost edge of the back ears to the length of the waist gasketing element is in the range of from about 1.0 to about 3.0 (length shown in figure 1 depicts the back ears being larger than the waist gasket element meaning the ratio should be greater than 1 and does not appear to be 3 times as large as the waist gasketing element), for at least the first article and the second article ([0088], [0100]); and
Mueller does not specifically teach wherein the length of the waist gasketing element of the second article is at least about 2 mm longer than the length of the waist gasketing element of the first article.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to cause the device of Mueller to have the length of the waist gasketing element of the second article is at least about 2 mm longer than the length of the waist gasketing element of the first article since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 SPQ 232 (1984). In the instant case, the device of Mueller would not operate differently with the claimed length, the device would function appropriately having the claimed length and merely a difference in sizing between the absorbent articles which fit the user. Further, applicant places no criticality on the range claimed, indicating simply that the length “optionally” be within the claimed ranges (specification pages 3). Furthermore, Mueller envisions differences size between the array of absorbent articles and would naturally follow that the individual aspects of the absorbent articles could be made a different size.
Regarding claim 2, Mueller does not disclose wherein the length of the waist gasketing element of the second article is at least about 4 mm longer than the length of the waist gasketing element of the first article.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to cause the device of Mueller to have the length of the waist gasketing element of the second article is at least about 4 mm longer than the length of the waist gasketing element of the first article since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 SPQ 232 (1984). In the instant case, the device of Mueller would not operate differently with the claimed length, the device would function appropriately having the claimed length and merely a difference in sizing between the absorbent articles which fit the user. Further, applicant places no criticality on the range claimed, indicating simply that the length “optionally” be within the claimed ranges (specification pages 3). Furthermore, Mueller envisions differences size between the array of absorbent articles and would naturally follow that the individual aspects of the absorbent articles could be made a different size.
Regarding claims 3-4 wherein the ratio of the length of the innermost edge of the back ears to the length of the waist gasketing element is in the range of from about 1.5 to about 2.5 (claim 3), wherein the ratio of the length of the innermost edge of the back ears to the length of the waist gasketing element is in the range of about from about 1.8 to about 2.2 for at least the first article and the second article (claim 4).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to cause the device of Mueller to have a ratio between the back ears and waist gasketing element length of about 1.5-2.5 and 1.8 and 2.2 since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 SPQ 232 (1984). In the instant case, the device of Mueller would not operate differently with the claimed length ratio and since the length of the back ears is already larger than the waist gasketing element, the device would function appropriately having the claimed ratio. Further, applicant places no criticality on the range claimed, indicating simply that the diameter “preferably” be within the claimed ranges (specification page 16).
Regarding claim 5, Mueller discloses the array further comprising a third article (10c), but does not specifically disclose the third article being adapted for wearers having a larger size than the second article; wherein the ratio of the length of the innermost edge of the back ears to the length of the waist gasketing element for the third article is in the range of from about 1.0 to about 3.0; and wherein the length of the waist gasketing element of the third article is at least 2 mm, longer than the length of the waist gasketing element of the second article.
Mueller further teaches the third article having the same or different features of the first and second ear laminates ([0101]). Therefore, it would have been obvious to a person of ordinary skill in the art while reviewing Mueller to make the third article being adapted for wearers having a larger size than the second article; wherein the ratio of the length of the innermost edge of the back ears to the length of the waist gasketing element for the third article is in the range of from about 1.0 to about 3.0; and wherein the length of the waist gasketing element of the third article is at least 2 mm, longer than the length of the waist gasketing element of the second article since the first article is already disclosed as fulfilling all of those features and one of ordinary skill in the art would make the third article similar to the first article as disclosed by Mueller since Mueller more absorbent articles can be added that would be similar to the first ear laminate.
Regarding claim 6, Mueller does not disclose wherein the length of the waist gasketing element of the third article is at least about 4 mm longer than the length of the waist gasketing element of the second article.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to cause the device of Mueller to have the length of the waist gasketing element of the third article is at least about 4 mm longer than the length of the waist gasketing element of the second article since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 SPQ 232 (1984). In the instant case, the device of Mueller would not operate differently with the claimed length, the device would function appropriately having the claimed length and merely a difference in sizing between the absorbent articles which fit the user. Further, applicant places no criticality on the range claimed, indicating simply that the length “optionally” be within the claimed ranges (specification pages 3). Furthermore, Mueller envisions differences size between the array of absorbent articles and would naturally follow that the individual aspects of the absorbent articles could be made a different size.
Regarding claim 7, Mueller discloses comprising from about 3 to about 12 articles of different sizes ([0101], figure 12), and wherein at least 50% of the articles in the array have a waist gasketing element (figure 8).
Regarding claims 8-9, Mueller does not disclose wherein the length of the waist gasketing element of the first article and second article, is between about 30 mm and about 60 mm for each of these articles, the length being measured in the longitudinal direction (claim 8), wherein the length of the waist gasketing element of the first article is in the range of from about 30 mm to about 50 mm; and the length of the waist gasketing element of the second article is in the range of from about 35 mm to 55 mm (claim 9).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to cause the device of Mueller to have a length of about 30mm and about 60 mm for each the first article and second article and the first article in the range of about 30 to about 50 mm and the length of the waist gasketing element of the second article in the range of about 35mm to 55mm since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 SPQ 232 (1984). In the instant case, the device of Mueller would not operate differently with the claimed length, the device would function appropriately having the claimed length and merely a difference in sizing between the absorbent articles which fit the user. Further, applicant places no criticality on the range claimed, indicating simply that the diameter “optionally” be within the claimed ranges and not strictly in the range (specification pages 3).
Regarding claim 10, Mueller discloses the width being measured in the transversal direction with the waist gasketing element being gently stretched (width of the waist gasket element, figure 8), does not specifically disclose wherein the width of the waist gasketing element for at least the first article and the second article is in the range of from about 30 mm to 100 mm.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to cause the device of Mueller to have wherein the width of the waist gasketing element for at least the first article and the second article is in the range of from about 30 mm to 100 mm, since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 SPQ 232 (1984). In the instant case, the device of Mueller would not operate differently with the claimed width, the device would function appropriately having the claimed length and merely a difference in sizing between the absorbent articles which fit the user. Further, applicant places no criticality on the range claimed, indicating simply that the diameter “typically” be within the claimed ranges and not strictly in the range (specification pages 12 and 18).
Regarding claim 11, Mueller discloses wherein at least one of the articles in the array comprise at least one channel-forming area (29, figure 1) in the absorbent core (28, [0052]).
Regarding claim 12, Mueller discloses wherein the absorbent core of at least one of the articles in the array is substantially free of cellulose fibers ([0052]).
Regarding claim 17, Mueller discloses wherein the array comprises distinct packages for each of the articles of a different size in the array (figure 11, [0102]).
Regarding claim 18, Mueller discloses wherein the personal hygiene articles are taped diapers for babies and/or infants with different recommended weight ranges ([0005], can have the intended use of being used on babies and infants).
Regarding claim 19, Mueller discloses an array of personal hygiene articles (10a, 10b, 10c, figure 8) comprising: at least a first article (10a) and a second article (10b) and a third article (10c), the second article being adapted for wearers having a larger size than the first article ([0088]), the third article adapted for wearers having a larger size than the second article ([0005], [0101]); each article comprising: a longitudinal centerline (100, figure 1); a transversal centerline (110); a chassis (20, figure 1) comprising a topsheet (24), a backsheet (26), an absorbent core (28), a pair of back ears (34) attached to and extending transversally outwardly from the chassis (figure 1, [0056]); and a waist gasketing element (80, [0087]) disposed on a wearer-facing side of the article and positioned laterally between the back ears (figure 1);
wherein the back ears each have an innermost edge having a length (Lf/Ls);
wherein the waist gasketing element has a length measured along the longitudinal centerline (length of 80);
wherein the ratio of the length of the innermost edge of the back ears to the length of the waist gasketing element is in the range of from about 1.0 to about 3.0 (length shown in figure 1 depicts the back ears being larger than the waist gasket element meaning the ratio should be greater than 1 and does not appear to be 3 times as large as the waist gasketing element), for at least the first article, second and the third article ([0088], [0100]); and
Mueller does not specifically disclose wherein the length of the waist gasketing element of the second article is at least 2 mm, longer than the length of the waist gasketing element of the first article, wherein the length of the waist gasketing element of the third article is at least 2 mm, longer than the length of the waist gasketing element of the second article.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to cause the device of Mueller to have the length of the waist gasketing element of the second article is at least about 2 mm longer than the length of the waist gasketing element of the first article since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 SPQ 232 (1984). In the instant case, the device of Mueller would not operate differently with the claimed length, the device would function appropriately having the claimed length and merely a difference in sizing between the absorbent articles which fit the user. Further, applicant places no criticality on the range claimed, indicating simply that the length “optionally” be within the claimed ranges (specification pages 3). Furthermore, Mueller envisions differences size between the array of absorbent articles and would naturally follow that the individual aspects of the absorbent articles could be made a different size.
Regarding claim 20, Mueller does not disclose wherein the length of the waist gasketing element of the first article, the second article, and the third article, is between about 30 mm and about 60 mm for each of these articles, the length being measured in the longitudinal direction.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to cause the device of Mueller to have a length of about 30mm and about 60 mm for each the first article and second article and the third article since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 SPQ 232 (1984). In the instant case, the device of Mueller would not operate differently with the claimed length, the device would function appropriately having the claimed length and merely a difference in sizing between the absorbent articles which fit the user. Further, applicant places no criticality on the range claimed, indicating simply that the diameter “optionally” be within the claimed ranges and not strictly in the range (specification pages 17-18).
Claim(s) 13-16 are rejected under 35 U.S.C. 103 as being unpatentable over Mueller (US 2018/0042786) in view of McCormick (US 20200375816).
Regarding claim 13, Mueller does not disclose wherein at least a portion of the waist gasketing element is adhesively attached to the chassis in an adhesive zone, and a least a portion of the waist gasketing element comprises a mechanical attachment to the chassis in a first adhesive-free zone disposed at and adjacent to a first side edge of the waist gasketing element (claim 13), wherein the waist gasketing element comprises a third adhesive-free zone disposed at and adjacent to a proximal end edge of the waist gasketing element at a central region of the waist gasketing element, such that the proximal end edge of the waist gasketing element at the central region is not attached to the chassis (claim 14), wherein the adhesive zone is disposed at and adjacent to a distal end edge of the waist gasketing element (claim 15), wherein first and second mechanical attachments extend through the waist gasketing element, the topsheet, and the backsheet.
McCormick discloses absorbent articles with waist gasketing elements and teaches wherein at least a portion of the waist gasketing element (258, figure 2) is adhesively attached to the chassis in an adhesive zone (271, [0087], figure 2), and a least a portion of the waist gasketing element comprises a mechanical attachment (272, [0085]) to the chassis in a first adhesive-free zone (273) disposed at and adjacent to a first side edge of the waist gasketing element (figure 2), wherein the waist gasketing element comprises a third adhesive-free zone (277) disposed at and adjacent to a proximal end edge (274) of the waist gasketing element at a central region of the waist gasketing element (figure 2), such that the proximal end edge of the waist gasketing element at the central region is not attached to the chassis ([0087]), wherein the adhesive zone is disposed at and adjacent to a distal end edge (276) of the waist gasketing element (271 adjacent end 276), wherein first and second mechanical attachments extend through the waist gasketing element, the topsheet, and the backsheet ([0085]).
McCormick provides adhesives and mechanical bonds to attach the waist gasketing element ([0085]). It would have been obvious to a person of ordinary skill in the art at the effective filling date to modify Mueller with the attachment mechanisms of McCormick in order to attach the waist gasketing element since Mueller is silent to how the waist gasketing element is attached.
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 KAI H WENG whose telephone number is (571)272-5852. The examiner can normally be reached M-F 9am-5pm.
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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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/KAI H WENG/Primary Examiner, Art Unit 3781
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