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 30 April 2026, with respect to the objections and rejection(s) of claim(s) 1-3, 5-7, 9-15, 17-19, 23 and 26-28 under 35 USC 103 and 35 USC 112 have been fully considered and are persuasive. Specifically, Applicant has amended the claims to overcome the previous 35 USC 112 rejections and amended the claims to include further recitation of the material used. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Brownlee. Examiner also notes the claim amendments to the independent claims introduce the limitation “brushed polyester” which was already claimed in claim 5. Thus, the claim rejections use the same grounds as claim 5 in which Brownlee teaches the limitation of the brushed polyester.
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) 1-3, 5-7, 11, 13-15, 17-19 and 23 are rejected under 35 U.S.C. 103 as being unpatentable over Gaudet (US 4981480) in view of Roe (US 2012/0022481) further in view of Brownlee (US 5360422).
Regarding claim 1, Gaudet discloses a launderable moisture management pant undergarment comprising:
(a) a pant body (10, figure 4) comprising leg openings (figure 4, leg openings in the diaper) having a crotch panel (12) disposed therebetween (figures 1 and 3), wherein a surface of at least the crotch panel are lined with a first moisture wicking fabric comprising a brushed or otherwise textured surface having fibers displaced from the fabric knit (col 2, lines 50-65, “a rectangular panel 12 made of double layers of soft woven material such as felt or flannelette, with an intermediate absorbent layer of woven or nonwoven material therebetween. The material may be a batting of rayon, polyester, cotton or a mixture of these materials which have high absorbency”), and
(b) a removeable moisture management booster pad (44, figure 3 shows the pad being removed) for positioning over the lined crotch panel (col 3, lines 38-48), the booster pad comprising:
an external covering (first layer made of felt or flannelette, col 3, lines 38-48) surrounding a fluid trapping core component (absorbent layer, col 3, lines 38-48) of the booster pad, the external covering comprising a second moisture wicking fabric comprising a brushed or otherwise textured surface having fibers displaced from the fabric knit (col 3, lines 38-48 “a separate absorbent panel 44 which is formed of two layers of soft woven material, such as felt or flannelette, with an absorbent layer, preferably a batting woven or nonwoven rayon, or polyester, cotton or other mixtures thereof, therebetween”), and
wherein the fluid trapping core component of the booster pad traps bodily fluid wicked away from the wearer's skin by the second moisture wicking fabric of the booster pad (col 3, lines 38-48, absorbent portions generally traps fluid, materials such as cotton wicks fluid);
Gaudet does not teach wherein physical contact between a first surface of the moisture wicking fabric lined crotch panel of the pant undergarment and a second surface of the moisture wicking fabric of the external covering of the booster pad, results in a friction, non-slip or interference fit between the booster pad and the moisture wicking fabric lined crotch panel, wherein the second moisture wicking fabrics comprises brushed polyester.
Roe discloses absorbent articles in the same field of endeavor as the Applicant. Roe teaches an absorbent pad (14, figure 1) which is attached to the crotch portion of the article through the use of press-fit ([0017]) resulting in the absorbent pad being friction fit to the crotch panel).
Roe utilizes press-fit as a functionally equivalent means of fitting the pad to the crotch ([0017]). It would have been obvious to a person of ordinary skill in the art at the effective filling date to modify Gaudet which attaches the pad to the panel with the functionally equivalent means of attachment taught by Roe (press-fit) in order to attach the pad to the crotch panel. Doing so would yield the predictable result of attaching two portions of the absorbent article.
Gaudet and Roe do not teach wherein the second moisture wicking fabrics comprises brushed polyester.
Brownlee discloses an absorbent article and teaches an absorbent insert (32) made of brushed polyester (col 3, lines 64-67).
Brownlee provides materials and select materials based on material properties ({col 3, lines 64-67 and col 4, lines 10-20). It would have been obvious to a person of ordinary skill in the art at the effective filling date to modify the material of Gaudet with the materials disclosed by Brownlee to achieve desirable material properties such as selecting brushed polyester for stay dry properties.
Regarding claim 2, Gaudet does not disclose wherein the removeable moisture management booster pad is free of fastener devices for releasably attaching the booster pad to the pant body.
Roe discloses absorbent articles in the same field of endeavor as the Applicant. Roe teaches an absorbent pad (14, figure 1) which is attached to the crotch portion of the article through the use of press-fit ([0017]) resulting in the absorbent pad being friction fit to the crotch panel), this means the booster pad is free of fastener devices for releasably attaching the booster pad to the pant body.
Roe utilizes press-fit as a functionally equivalent means of fitting the pad to the crotch ([0017]). It would have been obvious to a person of ordinary skill in the art at the effective filling date to modify the loop strips of Gaudet which attaches the pad to the panel with the functionally equivalent means of attachment taught by Roe (press-fit) in order to attach the pad to the crotch panel. Doing so would yield the predictable result of attaching two portions of the absorbent article.
Regarding claim 3, Gaudet discloses wherein the first moisture wicking fabric lining the crotch portion and the second moisture wicking fabric of the covering of the booster pad are the same fabric or are different fabrics (col 2, lines 50-65 and col 3, lines 38-48).
Regarding claims 5-6, Gaudet and Roe do not teach wherein the second moisture wicking fabrics comprises brushed polyester and containing more than 50% polyester and less than 50% spandex.
Brownlee discloses an absorbent article and teaches an absorbent insert (32) made of brushed polyester (col 3, lines 64-67). Brownlee does not disclose the use of Spandex, thus the device does not contain more than 50% spandex and since the material is polyester, the material used is more than 50% polyester.
Brownlee provides materials and select materials based on material properties ({col 3, lines 64-67 and col 4, lines 10-20). It would have been obvious to a person of ordinary skill in the art at the effective filling date to modify the material of Gaudet with the materials disclosed by Brownlee to achieve desirable material properties such as selecting brushed polyester for stay dry properties.
Regarding claim 7, Gaudet discloses wherein an optional second fluid trapping core component is attached to the floating liner or to an upper side of the crotch portion or wherein an optional second fluid trapping core component is attached to the underside of the floating liner or is removably attached to the floating liner (“optional” is recited as not required as being part of the invention, and Gaudet and Roe already teaches the limitations of claim 1 and meets the limitations of the instant claim).
Regarding claim 11, Gaudet discloses wherein edges of the pant body at the leg openings are elasticated (30).
Regarding claim 13, Gaudet discloses wherein the fluid trapping core component comprises one or more layers of one or more layers of an absorbent, quick drying fabric (col 3, lines 38-42).
Regarding claim 14, Gaudet discloses wherein one or more of the first and second fluid trapping core components comprise an absorbent, quick drying fabric manufactured from a cellulosic material (col 3, lines 38-42).
Regarding claims 15 and 17, Gaudet discloses wherein at least a portion of the crotch panel includes a moisture barrier component to prevent moisture leaking outside the pant during use, the moisture barrier component is a fabric (col 4, lines 35-45).
Regarding claim 18, Gaudet discloses the pant undergarment is in the form of a lauderable (reusable underwear, col 2, lines 65-68).
Regarding claim 19, Gaudet disclose a foldable configuration of the underwear (figure 4).
Regarding claim 23, Gaudet discloses a kit including the material of claim 1 comprising:
(i) one or more removeable moisture management booster pads (44, figure 3 shows the pad being removed) for positioning over the lined crotch panel (col 3, lines 38-48), the booster pad comprising:
an external covering (first layer made of felt or flannelette, col 3, lines 38-48) surrounding a fluid trapping core component (absorbent layer, col 3, lines 38-48) of the booster pad, the external covering comprising a second moisture wicking fabric comprising a brushed or otherwise textured surface having fibers displaced from the fabric knit (col 3, lines 38-48 “a separate absorbent panel 44 which is formed of two layers of soft woven material, such as felt or flannelette, with an absorbent layer, preferably a batting woven or nonwoven rayon, or polyester, cotton or other mixtures thereof, therebetween”), and
wherein the fluid trapping core component of the booster pad traps bodily fluid wicked away from the wearer's skin by the second moisture wicking fabric of the booster pad (col 3, lines 38-48, absorbent portions generally traps fluid, materials such as cotton wicks fluid);
one or more moisture management pant undergarment each comprising (a) a pant body (10, figure 4) comprising leg openings (figure 4, leg openings in the diaper) having a crotch panel (12) disposed therebetween (figures 1 and 3), wherein a surface of at least the crotch panel are lined with a first moisture wicking fabric comprising a brushed or otherwise textured surface having fibers displaced from the fabric knit (col 2, lines 50-65, “a rectangular panel 12 made of double layers of soft woven material such as felt or flannelette, with an intermediate absorbent layer of woven or nonwoven material therebetween. The material may be a batting of rayon, polyester, cotton or a mixture of these materials which have high absorbency”), and
Gaudet does not teach the booster pads have an additional pad, wherein physical contact between a first surface of the moisture wicking fabric lined crotch panel of the pant undergarment and a second surface of the moisture wicking fabric of the external covering of the booster pad, results in a friction, non-slip or interference fit between the booster pad and the moisture wicking fabric lined crotch panel, wherein the second moisture wicking fabrics comprises brushed polyester. However, it has been held that mere duplication of parts has no patentable significance unless a new and unexpected result is produced. In this case, simple duplication of the booster pads would allow more absorbency but does not appear to lead to a new and unexpected result. Thus it would have been obvious to a person of ordinary skill in the art at the effective filling date to modify Gaudet to have more than one additional pads in order to absorb more material.
Roe discloses absorbent articles in the same field of endeavor as the Applicant. Roe teaches an absorbent pad (14, figure 1) which is attached to the crotch portion of the article through the use of press-fit ([0017]) resulting in the absorbent pad being friction fit to the crotch panel).
Roe utilizes press-fit as a functionally equivalent means of fitting the pad to the crotch ([0017]). It would have been obvious to a person of ordinary skill in the art at the effective filling date to modify Gaudet which attaches the pad to the panel with the functionally equivalent means of attachment taught by Roe (press-fit) in order to attach the pad to the crotch panel. Doing so would yield the predictable result of attaching two portions of the absorbent article.
Gaudet and Roe do not teach wherein the second moisture wicking fabrics comprises brushed polyester.
Brownlee discloses an absorbent article and teaches an absorbent insert (32) made of brushed polyester (col 3, lines 64-67).
Brownlee provides materials and select materials based on material properties ({col 3, lines 64-67 and col 4, lines 10-20). It would have been obvious to a person of ordinary skill in the art at the effective filling date to modify the material of Gaudet with the materials disclosed by Brownlee to achieve desirable material properties such as selecting brushed polyester for stay dry properties.
Claim(s) 9-10 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Gaudet in view of Roe further in view Brownlee and further in view of Deerin (US 2008/0015538).
Regarding claims 9-10, and 12, Guadet and Roe do not teach wherein at least a portion of the crotch panel is overlaid with a floating liner fixedly attached to the pant body and adapted to accommodate the optional second fluid trapping core component which traps bodily fluid wicked away from the wearer's skin, wherein at least one or more portions of the floating liner and the crotch panel can be physically separated from each other to expose the optional second fluid trapping core component to aid drying (claim 9), wherein at least one or more portions of the floating liner are unattached to the pant body allowing physical separation of the optional second fluid trapping core component from the crotch portion (claim 10), wherein at least a portion of the floating liner comprises the first moisture wicking fabric comprising a brushed or otherwise textured surface (claim 12).
Deerin discloses a pant garment and teaches wherein at least a portion of the crotch panel is overlaid with a floating liner (40) fixedly attached to the pant body and adapted to accommodate an absorbent (140, [0025-0026]), wherein at least one or more portions of the floating liner and the crotch panel can be physically separated from each other to expose the optional second fluid trapping core component to aid drying ([0025], pocket can have an open end to allow the interior to be removed), wherein at least one or more portions of the floating liner are unattached to the pant body allowing physical separation of the optional second fluid trapping core component from the crotch portion ([0025]). In this case the optional second absorbent is optional and the pocket is capable of holding a second absorbent until removal, the floating liner can be made from textured surface material ([0022]).
Deerin provides a pocket with an opening to remove the absorbent ([0025]). It would have been obvious to a person of ordinary skill in the art at the effective filling date to modify the cited prior art with Deerin arrangement in order to facilitate easy removal of the absorbent.
Claim 26 is rejected under 35 U.S.C. 103 as being unpatentable over Gaudet in view of Roe further in view of Siriwardena (US 20210282469).
Regarding claim 26, Gaudet does not disclose wherein one or more of the first and second moisture wicking fabrics comprises brushed Merino wool.
Siriwardena discloses an incontinence underwear and teaches the fabric of the underwear be made from wool ([0035]). While Siriwardena does not specifically state the wool is brushed, the “brushed” limitation is interpreted as a product by process limitation wherein the end product is a Merino wool made with a brushed process. Since the patentability for product claims are based on the product itself, Sirirwardena discloses the product of the wool.
Siriwardena provides the use of wool for desirable material properties ([0035]). It would have been obvious to a person of ordinary skill in the art at the effective filling date to modify the cited prior art with the wool in order to obtain desired material properties.
Claim(s) 27-28 are rejected under 35 U.S.C. 103 as being unpatentable over Gaudet in view of Roe further in view of Brownlee further in view of Mullen (US 2006/0247599).
Regarding claim 27, Guadet does not disclose wherein the absorbent, quick drying fabric is a polyester microfibre fabric (claim 27), wherein the absorbent, quick drying fabric is a microfibre towelling comprising about 80% polyester and about 20% polyamide (claim 28).
Mullen discloses an absorbent garment wherein the absorbent, quick drying fabric is a polyester microfibre fabric (meltblown polyester fabric ([0085], [0018], [0125]), but does not disclose wherein the absorbent, quick drying fabric is a microfibre towelling comprising about 80% polyester and about 20% polyamide.
Mullen discloses (pp. [0042]) that material percentages are contemplated and tested for best results for friction ([0041-0042]), thus the percentages of material is disclosed to be a result effective variable in changing the material composition effects the material property of the fabric. Further, it appears that one of ordinary skill in the art would have had a reasonable expectation of success in modifying the Mullen to have a length within the claimed range, as it involves only adjusting the dimension of a component disclosed to require adjustment. Therefore, it would have been obvious to one having ordinary skill in the art at the time of the invention to modify the device of the cited prior art by making the material composition as claimed a matter of routine optimization since it has been held that “where 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, 105 USPQ 233, 235 (CCPA 1955).
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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/KAI H WENG/ Primary Examiner, Art Unit 3781
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