DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
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 1-5, 7, 10-12, 15, and 16 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,000,422 in view of Moriura et al.(US Publication 2009/0056867)
US Patent 11,00,422 claims a method of making an absorbent article comprising depositing an absorbent material into a reservoir on an air-permeable rotating drum which has two raised strips, providing a moving surface with an air permeable surface and two air-impermeable raised strips having a sheet thereon, and transferring the absorbent material to the sheet so that two channels with no absorbent material are applied to the second sheet. The patent does not disclose a sheet located on the drum before the absorbent material is applied which is bonded to the sheet on the moving surface via the channels, the raised strips being 5-30% of the width of an absorbent layer, and the absorbent material being superabsorbent material. Moriura et al. discloses a method of making an absorbent article comprising providing a first moving surface(27A) having an absorbent layer forming reservoir with multiple raised strips(t1), depositing absorbent particles onto a substrate in the reservoirs, and bonding the substrate to a second substrate forming channels or absorbent materials with bonded areas between them.(Figures 1, 4(g), and 5(b)) As the entire width shown is used for making one garment(Figure 5(b)), the width shown is considered the width of the absorbent layer forming reservoir. Figure 5(b) shows three channels, and one in the art would understand they would be each less than 30% of the width of the reservoir since each of them being 30% would make 90% of the article have no absorbent material and each of them would be greater than 5% of the width since a smaller width would mean the bonding may not completely occur and since the drawings appear to suggest a width of greater than 5%. It would have been obvious to one of ordinary skill at the time of filing to apply a sheet prior to applying the absorbent material and to have the strips be 5-30% of the width of the absorbent layer since Moriura et al. teaches sandwiching the absorbent materials between two sheets thus preventing it from contacting the skin, which is a known desire in the absorbent article arts and to have the strips be 5-30% of the width of the absorbent layer since this allows enough area to bond while still having absorbent material covering a majority of the surface as shown by Moriura et al.(Figure 5a) The reference does not disclose the absorbent material being superabsorbent particles, only describing them as “highly water absorbent resin particles”.[0058] It is extremely well known and conventional in the diaper arts to use superabsorbent particles in diapers and it would have been obvious for this reason.
Regarding claim 2, Moriura et al. disclose bonding the sheets together using hot melt adhesive, which is a type of glue.(33)
Regarding claim 3, while Moriura et al. does not disclose ultrasonic welding, ultrasonic welding is a well-known and conventional method of joining material in the absorbent article arts and would have been obvious for this reason.
Regarding claim 4, Moriura et al. disclose bonding the sheets together using hot melt adhesive(33), which requires the application of heat, making it heat bonding.([0031], Figure 7)
Regarding claim 5, Moriura et al. discloses applying the adhesive before the particles are applied to the sheet.(33)
Regarding claim 7, Moriura et al. discloses using a hot melt adhesive and does not suggest the adhesive is temporary. Since the adhesive is holding the sheets together, one in the art would appreciate it was permanent as otherwise the diaper would fall apart in use.
Regarding claim 10, Moriura et al. discloses applying the adhesive to the sheet, not the absorbent material. However, there are only two choices for the surface to apply the adhesive to, the sheet having the particles and the sheet not having the particles, and thus they are obvious alternatives in the art.
Regarding claim 11, while Moriura et al. does not explicitly state the adhesive is applied as fibers, it does state the adhesive can be applied by melt blow coating, and melt blowing forms fine fibers. Thus applying the adhesive using melt blow coating would be applying the adhesive as fibers.
Regarding claim 12, Moriura et al. discloses the particles in excess of those in the reservoirs are scraped off, so the channels would be substantially free of absorbent material.[0058]
Regarding claim 15, one in the art would appreciate that the raised strips on the drum are intended to correspond to the raised strips on the moving surface, i.e. maintaining the absorbent free areas in the same locations on the different surface and thus the two sets of raised strips would be adjacent each other to allow transfer.
Regarding claim 16, Moriura et al. discloses the absorbent layer can be made of cellulose material.[0077]
Claims 6 and 8 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,000,422 and Moriura et al. in view of Miyamura et al.(WO 2010/146996)
Regarding claims 6 and 8, Moriura et al. discloses applying hot melt adhesive. It does not disclose whether the adhesive is applied continuously or intermittently. Miyamura et al. a joint between layers of absorbent material and which can form a continuous or intermittent line.(Figure 1, machine translation) It would have been obvious to one of ordinary skill at the time of filing to make the bonding between the sheets either continuous or intermittent in the areas between the channels of absorbent material since Miyamura et al. discloses this is a known alternative in the art for the bonding between the absorbent sections.
Claim 9 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,000,422 and Moriura et al. in view of Fujioka et al.(US Patent 6,056,732).
Moriura et al. clearly teaches the strips are pattern elements which can be changed.(Figures 4a-h) Fujioka et al. discloses an absorbent core which has channels without absorbent material which are clearly less than 30% each the length of the reservoir since there are three of them and they do not join together.(Figure 2B) It would have been obvious to one of ordinary skill at the time of invention that the strip of US Patent 11,000,422 and Moriura et al. can be less than 30% the length of the reservoir when it is desired for a different shaped core such as the one of Fujioka et al. which shows channels which are less than 30% the length of the core but more than 5% of the length.(Figure 2B)
Response to Arguments
Applicant’s amendment has overcome the art of record. However, a reference only available for obvious double patenting has been discovered and a rejection made using it.
Conclusion
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BARBARA J. MUSSER
Primary Examiner
Art Unit 1746
/BARBARA J MUSSER/ Primary Examiner, Art Unit 1746
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