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 .
Election/Restrictions
Applicant’s election without traverse of Group I, corresponding to Claims 1-18, in the reply filed on February 10, 2026 is acknowledged. Claims 19 and 20 are withdrawn from consideration.
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 9-10 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.
Regarding claim 9, the phrase "such as" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Claim Rejections - 35 USC § 102
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.
Claims 1-2, 4-6 and 8 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Sworen et al. (US 2023/0332348).
With regard to claim 1, Sworen et al. (hereinafter “Sworen”) discloses a fabric [0034], comprising:
a fibrous substrate including a first outermost surface and a second outermost surface and (ii) a non-fluorinated barrier coating (NFBC) and/or a fluorinated barrier coating (FBC) located on at least a portion of both a first and second outermost surface of the fabric, at least a portion of a second outermost surface of the fabric as set forth in [0023] where Sworen discloses that the coating composition may comprise a mixture of both hydrophobic non-fluorinated (meth)acrylic polymers and fluorinated phosphates. [0037-0038] describe processes that would allow the coating to be applied to all surfaces of the fabric.
As to claim 2, Sworen discloses a fabric wherein the fabric includes the FBC, and wherein the FBC comprises at least one fluorochemical comprising at least one C4 fluorochemical, a C6 fluorochemical, a C8 fluorochemical, a C10 fluorochemical, or any combination thereof as set forth in [0027-0028].
Regarding claim 4, see the rejection of claim 1 where Sworen discloses that the fabric includes a mixture of first and second NFBC and a process for coating all surfaces of the fabric with the mixture.
With regard to claims 5-6, Sworen discloses that the silicone polyether polymer can comprise a silicone acrylate [0011-0017] that can be cured using UV radiation as set forth in [0039].
With regard to claim 8, the epoxy oligomers or polymers are optional to claim 6, and Sworen satisfies the limitation by disclosure of the silicone acrylate polymer.
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 3 is rejected under 35 U.S.C. 103 as being unpatentable over Sworen et al. (US 2023/0332348) and further in view of von Blucher et al. (US 2012/0084905).
With reference to claim 3, Sworen teaches the invention substantially as claimed as set forth in the rejection of claim 1.
Sworen discloses a sprayed composition as set forth in [0034].
The difference between Sworen and claim 3 is the provision that the composition comprises a plasma cured composition.
Von Blucher et al. (hereinafter “von Blucher”) teaches an analogous fabric including a plasma cured FBC composition in [0050-0053].
It would have been obvious to one of ordinary skill in the art at the time of the invention to provide Sworen with a plasma cured composition as taught by von Blucher because the plasma treatment provides a way of specifically adjusting the surface properties, such as surface constitution (for example roughness) and surface reactivities (for example hydrophilicity or hydrophobicity on the one hand or oleophilicity or oleophobicity on the other) to optimize the particular application requirements as taught by von Blucher through the incorporation of Bohringer et al. in [0053] where Bohringer et al. explicitly recites the benefits in [0010-0011].
Claims 9-10 are rejected under 35 U.S.C. 103 as being unpatentable over Sworen et al. (US 2023/0332348) and further in view of Crosetto (US 2022/0178078).
With regard to claims 9-10, Sworen teaches the invention substantially as claimed as set forth in the rejection of claim 1.
Sworen does not disclose the coating contain a wax having an acid value from 10 mg to 220 mg and a retention aid comprising a nitrogen-containing polymer of formula (III).
Crosetto teaches an analogous treated article that include fibers (abstract).
Crosetto discloses that fibers can be treated with a wax having an acid value from 10 mg to 220 mg and a retention aid comprising the nitrogen-containing polymer of formula (III) as set forth in [0011-0018]. Additionally, Crosetto teaches that materials can be used to improve barrier properties of a coating as set forth in 0047.
It would have been obvious to a person having ordinary skill in the art at the time of filing the invention to incorporate a wax having an acid value from 10 mg to 220 mg and a retention aid comprising the nitrogen-containing polymer of formula (III) into the coating composition disclosed by Sworen in order to improve the barrier properties of the coating, as shown to be known in the art by Crosetto.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Sworen et al. (US 2023/0332348) and further in in view of Suzuki et al. (US 2009/0042468).
With regard to claim 11, Sworen teaches the invention substantially as claimed as set forth in the rejection of claim 1.
The difference between Sworen and claim 11 is the provision that the NFBC has a specific weight on a dry basis of the fabric.
Suzuki et al. (hereinafter “Suzuki”) teaches analogous liquid barrier coatings for use on a fibrous substrate as set forth throughout the document.
Suzuki teaches that, for a composite fabric having a basis weight in the range of 20 gsm to 100 gsm, paragraphs as set forth in [0173] and [0178] and that a suitable coating amount is 1 to 10 gsm as set forth in [0186].
Suzuki also discloses that the solid content of the coating is about 20% to 50% as set forth in [0425], [0441], [0453], and [0490].
It would have been obvious to a person having ordinary skill in the art at the time of filing the invention to provide a dry coating amount in the range of 0.05 to 10% by weight of the fabric in the barrier fabric disclosed by Sworen because Suzuki teaches that such an amount is suitable for providing a barrier to liquid while not significantly interfering with the lightweighted nature of the fabric, itself.
“[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456 (CCPA 1955).
Claims 12-15 are rejected under 35 U.S.C. 103 as being unpatentable over Sworen et al. (US 2023/0332348) and further in view of Isaac (US 2021/0085536).
With regard to claims 12-15, Sworen teaches the invention substantially as claimed as set forth in the rejection of claim 1.
Isaac teaches an analogous fibrous substrate including a repellent treatment [0037] on a recited (cl. 12) fabric [0029] and including a binder (cl. 13) as set forth in [0031].
As required by claims 14-15, Isaac also provides an absorbent article, including a diaper (cl. 15) as set forth in [0003] wherein the fabric is provided as a backsheet [0037] with an absorbent core (204) located between the fabric and a topsheet as set forth in [0006].
It would have been obvious to one of ordinary skill in the art at the time of the invention to provide Sworen with a spunbond fabric and a binder as taught by Isaac for the benefits known in the art provided by spunbond fabric and binders which include improved breathability and tensile strength as taught by Isaac in [0029].
Claims 16-18 are rejected under 35 U.S.C. 103 as being unpatentable over Sworen et al. (US 2023/0332348) and further in view of Isele et al. (US 2011/0196325).
With regard to claims 16-18, Sworen teaches the invention substantially as claimed as set forth in the rejection of claim 1.
Isele et al. (hereinafter “Isele”) teaches an analogous fibrous substrate including a fluorinated coating [0128] that may be applied to at least one barrier leg cuff [0081] of a diaper [0004] wherein the at least one barrier leg cuff incudes a free distal edge (64) and a contractible (63) cuff disposed adjacent to a longitudinal edge of the diaper (cl. 17) what is attached to the crotch region 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 utilize the fabric as taught by Sworen in combination with a diaper having leg cuffs as suggested by Isele in order to provide improved container of fluids and other bodily exudates and increase low surface tension fluid strikethrough time while not significantly decreasing air permeability as taught by Isele in [0097] and [0126].
Claim Rejections - 35 USC §§ 102/103
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.
Claim 7 is are rejected under 35 U.S.C. 103 as being unpatentable over Sworen.
With regard to Claim 7, Sworen discloses that the silicone polyester polymer can comprise a repeating unit of formula (I):
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which satisfies the parameters of Applicant’s claimed formula (I) because X in Sworen is a C1-C4 alkylene group, R1 is a C1-C4 alkyl group, and because c and d in Sworen can both be equal to 0. Paragraph [0009]. As such, the scope of Applicant’s claimed formula (I) is readily envisaged by the disclosure of Sworen. Alternatively, it would have been obvious to a person having ordinary skill in the art at the time of filing the invention to selected c and d to both be 0 in the invention according to Sworen because Sworen discloses that such a structure is suitable for use in their invention, and because it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability and desired characteristics. In re Leshin, 277 F.2d 197 (CCPA 1960).
The burden is upon the Applicant to show otherwise. The Patent and Trademark Office can require applicants to prove that prior art products do not necessarily or inherently possess characteristics of claimed products where claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes; burden of proof is on applicants where rejection based on inherency under 35 U.S.C. § 102 or on prima facie obviousness under 35 U.S.C. § 103, jointly or alternatively, and Patent and Trademark Office’s inability to manufacture products or to obtain and compare prior art products evidences fairness of this rejection. In re Best, Bolton, and Shaw, 195 USPQ 431 (CCPA 1977).
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 1-18 of copending Application No. 18/517,043 (“the ‘043 Application”). Although the claims at issue are not identical, they are not patentably distinct from each other because the ‘043 Application also claims a fabric comprising a fibrous substrate having an outermost surface coated with a non-fluorinated barrier coating. The subject matter of the dependent claims also overlaps with the claimed silicone acrylate structures, epoxy silicone structures, and additional ingredients recited.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-18 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 of copending Application No. 18/610,740 (“the ‘740 Application”). Although the claims at issue are not identical, they are not patentably distinct from each other because the ‘740 Application also claims a fabric comprising a fibrous substrate having an outermost surface coated with a non-fluorinated barrier coating. The subject matter of the dependent claims also overlaps with the claimed silicone acrylate materials, epoxy silicone materials, and additional layers recited.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-18 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 of copending Application No. 19/085,021 (“the ‘021 Application”). Although the claims at issue are not identical, they are not patentably distinct from each other because the ‘021 Application also claims a fabric comprising a fibrous substrate having an outermost surface coated with a non-fluorinated barrier coating. The subject matter of the dependent claims also overlaps with the claimed silicone acrylate materials, epoxy silicone materials, and additional layers recited.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-18 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-16 of copending Application No. 19/243,179 (“the ‘179 Application”). Although the claims at issue are not identical, they are not patentably distinct from each other because the ‘179 Application also claims a fabric comprising a fibrous substrate having an outermost surface coated with a non-fluorinated coating that would function as a barrier material. The subject matter of the dependent claims also overlaps with the claimed silicone acrylate materials, epoxy silicone materials, and additional layers recited.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
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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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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