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 Interpretation
Since the claims do not include any units of the absorbency any absorbency would read on the claims, since it is known that absorbency can be expressed in different forms, e.g., gsm, gsm/seconds (rate), gliquid/gfiber, etc. Also since the claim only recites MD stretch, not the percentage, which it is commonly expressed, then the actually ratio of stretch can be used for the calculations, i.e., not in percentages.
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.
Claim 2 is rejected under 35 U.S.C. 103 as obvious over Edwards et al., (hereinafter Edwards), US Patent Application Publication No. 2004/0238135 A1.
Edwards teaches a two-ply towel having absorbency, measured by the GAT method (see ¶-[0094], between 5 to 12 g/g (see ¶-0030]) and MD stretch of at least 15% or less than 20% (see ¶-[0023], [0032], [0035]) and on table 11 shows MD stretch of 5 for special two-ply products which indicates that the ratio of absorbency to MD stretch varies from 1 to 2.4, which falls within the claimed range. Although the use or not of enzyme is a process limitation, which not necessarily defines the product, yet Edwards does not use enzyme to make the tissue and thus reading on the limitation as-well.
It seems that Edwards teaches all the limitations of the claim or at the very least the minor modification(s) to obtain the claimed invention would have been obvious to one of ordinary skill in the art.
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.
Claim 2 is rejected under 35 USC §102(a)(1). This rejection is set forth in the prior Office action mailed on October 29, 2024.
Response to Arguments
Applicant's arguments filed on October 24, 2025 have been fully considered but they are not persuasive.
We regard to Sealy applicants argue that the calculations are made using different basis weight, since the GATS uses air dry and the basis weight shown by the reference is based on a bone dry weight. This argument is not convincing, because even if the absorbency is calculated based on air dry, i.e., the basis weight, the absorbency relationship would still be within the claimed range, as shown below:
The relationship between bone dry and air dry basis weight is calculated as:
Bone dry= Air dry*0.9; which is at the end of the spectrum, i.e., very conservative estimation, since it assumes a 10% moisture, which in most cases the moisture is lower, especially the equilibrium moisture. Using the results of the table the Air basis weight would be the Bone dry/0.9, i.e., 46.15; which gives an absorbency (g/g)= 700 gsm/46.16 gsm of fiber= 15.16 and the ratio of absorbency to MD stretch would be 15.16/10.7 = 1.417, which is still within the claimed range, i.e. greater than 1.2.
Applicants also argues that the reference uses enzyme, but the use of enzyme this is a process limitation and not a property of the product and the product of the reference has the claimed properties. Note that enzymes are taken out, recovered, from the final product and thus the end products would be the same, i.e., they have the same properties.
Applicants argue that the Edwards reference does not teach the absorbency to MD stretch ratio since even using the Lowest MD stretch (17%) mentioned the absorbency would have to be 20.4 to obtain the claimed ratio. The arguments are not persuasive, because a reference is not evaluated by its specific examples, but what it teaches to one of ordinary skill in the art. A disclosure in a reference is not limited to its specific illustrative examples, but must be considered as a whole to ascertain what would be realistically suggested thereby to one of ordinary skill in the art. In re Uhlig, 54 CCPA 1300, 376 F2d 320; 153 USPQ 460. Also, it has been held that “[R]eferences are not limited to preferred embodiments.” In re Boe, 148 USPQ 507 (CCPA 1966). Also, it has been held that all the disclosure in a reference must be evaluated for what they fairly teach one of ordinary skill in the art. In re Smith, 32 CCPA 959, 148 F.2d 351, 65 USPQ 167; In re Nehrenberg, 47 CCPA 1159, 280 F.2d 161, 126 USPQ 383; and in In re Watanabe, 50 CCPA 1175, 315 F.2d 924, 137 USPQ 350.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure “Two Plies Absorbent Products.”
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOSE A FORTUNA whose telephone number is (571)272-1188. The examiner can normally be reached MONDAY- FRIDAY 11:30 PM- 9:00 PM.
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, Abbas Rashid can be reached at 571-270-7457. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/JOSE A FORTUNA/Primary Examiner, Art Unit 1748
JAF