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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on July 8th, 2026 has been entered.
Claim Status
Applicant’s request for reconsideration submitted on April 24th, 2026 has been entered. Claims 1 and 6 has been amended. Claims 17 and 18 have been newly added. Claims 1-18 are currently pending and under consideration.
Response to Arguments
Applicant's arguments filed July 8th, 2026 have been fully considered but they are not persuasive.
Regarding applicant’s argument that BÄCK must disclose that the front and rear end portions of its elastic members are attached to the laminate material itself, and that BÄCK
Instead discloses that its elastic members are positioned within the absorbent assembly, examiner respectfully disagrees in that the limitation of “attached to” is not seem to require direct attachment and instead can be attached indirectly through the attachment of an intermediary member as seen in BÄCK. However, as currently rejected this point is moot as Van Gompel is seen to cover direct attachment to the front and rear body panels.
Regarding applicant’s arguments pertaining to Claim 4 that the examiner relies solely on the dimensions allegedly depicted in Fig. 5 of Igaue in an attempt to establish overlapping ranges, the examiner respectfully disagrees as the current rejection relies upon the ranges that would have been obvious to one of ordinary skill in the art in reference to the disclosure of Igaue and is not relying solely upon the scale of the drawings themselves as seen in the below current rejection of claim 4.
Regarding applicant’s arguments pertaining to claims 17 and 18 these are considered moot as the current rejection does not rely upon any of the previously presented art to address any of the arguments pertaining to these claims.
Claim Rejections - 35 USC § 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(s) 1-2, 6, 8-16 is/are rejected under 35 U.S.C. 103 as being unpatentable over BÄCK et al. (U.S. Publication 2017/0216105) in view of Van Gompel et al. (U.S. Patent No. 6,132,410).
Regarding claim 1, BÄCK discloses A disposable pant-type article (1, Figs 1 and 2), the article having a longitudinal direction (y) and a transverse direction (x), the article comprising:
a front body panel 5, the front body panel having a front panel waist edge (see illustrative diagram of Fig. 2 below), a front panel crotch edge 33 opposite the front panel waist edge (opposite in longitudinal axis) and a first and a second longitudinal front panel side edge (8 and 9 respectively);
a rear body panel 8, the rear body panel having a rear panel waist edge (see illustrative diagram of Fig. 2 below), a rear panel crotch edge opposite the rear panel waist edge 34 and a first and a second rear panel side edge (11 and 12 respectively);
a crotch region 19 being located between the front panel crotch edge 33 and the rear panel crotch edge 34, the crotch region being contiguous with the front body panel along the front panel crotch edge and being contiguous with the rear body panel along the rear panel crotch edge (¶0062 joined along seams 33 and 34); wherein
the first front panel side edge is joined to the first rear panel side edge in a first side seam 13 and the second front panel side edge being joined to the second rear panel side edge in a second side seam 14
the front panel waist edge and the rear panel waist edge together define a waist opening 15; and
a first leg edge (edge including elements 19a-c of 16) defines a first leg opening 16 and a second leg edge (edge including elements 19a-c of 17) defines a second leg opening 17, wherein
the front body panel is elastically stretchable (¶0041 elastic laminate material) in the transverse direction (¶0041 elasticity in the x-direction), a front leg edge section (see section of Fig. 2 denoted by 19b) of each of the first and the second leg edge being arranged in the front body panel 5;
the rear body panel is elastically stretchable (¶0041 elastic laminate material) in the transverse direction (¶0041 elasticity in the x-direction), a rear leg edge section (see section of Fig. 2 denoted at 19c) of each of the first and the second leg edge being arranged in the rear body panel 6;
the crotch region comprises a crotch web material (24, ¶0062 non-elastic web material), a crotch leg edge section (see section of Fig. 2 denoted at 19b) of each of the first and the second leg edge being arranged in the crotch region; wherein a total length of the first leg edge is the combined length of the front leg edge section, the crotch leg edge section and the rear leg edge section of the first leg edge (first leg edge formed by entire edge of 16 including sections formed by front, crotch, and rear panels) and a total length of the second leg edge is the combined length of the front leg edge section, the crotch leg edge section and the rear leg edge section of the second leg edge (first leg edge formed by entire edge of 17 including sections formed by front, crotch, and rear panels); and wherein
a pre-tensioned first crotch elastic member 27 is arranged extending in the longitudinal direction along the first leg edge (¶0065 extending along the respective longitudinal edges of the crotch region 19a) and a pre-tensioned second crotch elastic member 28 is arranged extending in the longitudinal direction along the second leg edge (¶0065 extending along the respective longitudinal edges of the crotch region 19a), the crotch leg edge section of the first leg edge extending partly in the first crotch elastic member (first crotch elastic member 27 partly surrounds edge section 19a of side of 16) and the crotch leg edge section of the second leg edge extending completely or partly in the second crotch elastic member (second crotch elastic member 28 partly surrounds edge section 19a of 17),
the crotch elastic members each have a front end portion and a rear end portion (see illustrative diagram of Fig. 2 below) and wherein the front end portion of each of the first and the second crotch elastic members overlaps with and is attached to the front body panel (see illustrative diagram of Fig. 2 elastic members extend past seem 33 and thus overlap with panel 5, attached at seam 33, ¶0073 extend a certain distance into part of the leg openings, leg elastic members overlaps the elastic laminate 20).
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Illustrative diagram of Fig. 2 of BÄCK et al.
BÄCK does not expressly disclose the rear end portions of the elastic member overlapping with and attached to the rear body panel.
However, Van Gompel et al., in the same field of endeavor of disposable pant-type garments, discloses a disposable pant-type garment (Fig. 1) comprising pre-tensioned (Col. 26 lines 40-62 leg elastic members stretched to stop and ultra-sonically point bonded to the side marginal edges of the backsheet) first and second crotch elastic members 34,35 arranged extending in the longitudinal direction 34 along a first and second leg 80 edge respectively, containing front and rear end portions 35 that overlap with and are attached to respective front 53 and rear body 52 panels (Col. 19 lines 55-30 can include at least one longitudinal end section which diverges away from the absorbent composite…the end sections of the leg elastic members can be attached to the outward surface 56 of its corresponding body panel; Col. 26 lines 40-62 longitudinal end portions of each leg elastic member were angled outboard to extend laterally beyond the side edge regions of the absorbent composite, and were attached to the front and back body panels)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the elastic members of BÄCK to extend such that they overlap and are attached to the front and rear body panels as taught by Van Gompel for the purpose of forming leg gathers at these positions of the article (Col. 26 lines 40-62 of Van Gompel, accordingly, the laterally opposed pair of leg elastic members created a gathered element at each leg opening of the diaper).
Regarding claim 6, BÄCK discloses the disposable article according to claim 1. BÄCK further discloses a first reinforcing elastic feature 29 is arranged on the elastically stretchable rear body panel along the rear leg edge section 19c of the first leg edge (19a-c of 16) and a second reinforcing elastic feature 30 is arranged on the elastically stretchable rear body panel along the rear leg edge section 19c of the second leg edge (19a-c of 17), the first reinforcing elastic feature 29 extending along a first part (part occupied by 29) of the rear leg edge section of the first leg edge in a direction away (extends toward edge 11) from a longitudinal center line (see fig. 2 dotted line through center extending in y direction) of the pant-type article towards the first side seam (extends toward side seam 13 when 11 and 8 are joined) and having an end point on the rear leg edge section of the first leg edge (point of 31 that is opposite side seam 11), with a second part 31 of the rear leg edge section of the first leg edge being free from the first reinforcing elastic feature (¶0070 second elastic members do not extend all the way to side seams but terminate at a distance from the respective side seam leaving area 31 and 32), the second part of the rear leg edge section of the first leg edge having a length (P) as measured along the first leg edge from the end point of the first reinforcing elastic feature to the first side seam (¶0070 measured along the periphery of the respective leg opening and is measured to the inner edge of the respective side seam, second elastic members do not extend all the way but terminate in the leg openings at a distance from the respective side seam thus leaving area corresponding to peripheral length) which is at least 50 mm of the rear leg edge section of the first leg edge, the second reinforcing elastic feature extending along a first part (part occupied by 30) of the rear leg edge section of the second leg edge in a direction away (extends toward edge 12) from the longitudinal center line (see fig. 2 dotted line through center extending in y direction) of the pant-type article towards the second side seam (extends toward side seam 14 when 12 and 9 are joined) and having an end point on the rear leg edge section of the second leg edge (point of 32 length P that is opposite element 12), with a second part 32 of the rear leg edge section of the second leg edge being free from the second reinforcing elastic feature (¶0070 second elastic members do not extend all the way to side seams but terminate at a distance from the respective side seam leaving area 31 and 32), the second part of the rear leg edge section of the second leg edge having a length (P) as measured along the second leg edge from the end point of the second reinforcing elastic feature to the second side seam (¶0070 measured along the periphery of the respective leg opening and is measured to the inner edge of the respective side seam, second elastic members do not extend all the way but terminate in the leg openings at a distance from the respective side seam thus leaving area corresponding to peripheral length) which is at least 50 mm of the rear leg edge section of the second leg edge. BÄCK further discloses the boundary between the elastic laminate 20 and non-elastic crotch panel material 24 being seam 34 which defines the boundary of the rear leg edge sections which extends from edge 11 and 12 respectively to the boundary edge 34. BÄCK discloses the leg elastic members overlapping the elastic laminate, and thus the boundary edge 34 by no more than 20 mm and no more than 15mm as well as potentially ending at the seam 34 meaning that elastic elements extend between 0 mm and 20 mm into the elastic laminate ¶0073 and thus 0 mm – 20 mm into the rear leg edge sections. As the length p of the of the rear leg edge sections that is free from elastic member is described as at least 50 mm, at least 75 mm, or at least 100 mm, this means that the length p makes up between 71-100%, as if the extension of elastic members equals 20 mm and p equals 50 the total would be 70 mm equaling p making up 71% of the length and only increasing to 100% of the length as the overlap of elastic elements diminishes and the length of p gets longer. As such the disclosure of BÄCK anticipates the length being 71% of the total length of the rear leg edge sections and thus anticipates this portion of the range of 25%-75%.
BÄCK however fails to anticipate the range below 71% of the length however, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify lengths of the second parts of the rear leg edge sections of the first and second leg edges of BÄCK, to be between 25%-75% of the total length of the corresponding rear leg edge as applicant appears to have placed no criticality on the claimed range (Page 6, line 25-28may have a length as measured along the second leg edge from the end point of the second reinforcing elastic feature to the second side seam which is from 25% to 75% of a total length of the rear leg edge, Page 16 line 31 from 25% to 75% of a total length) and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). In the instant case, BÄCK would not operate differently with the claimed range. Further, applicant places no criticality on the ranged claimed, indicating simply that the “second part of the rear leg edge section of the second leg edge may have a length as measured along the second leg edge from the end point of the second reinforcing elastic feature to the second side seam which is from 25% to 75% of a total length of the rear leg edge” (Page 6 lines 24-28).
Regarding claim 8, BÄCK discloses the disposable article according to claim 1. BÄCK further discloses the crotch web material being a non-elastic crotch web material (¶0062 may be of a non-elastic web material) and is a non-elastic nonwoven web (¶0062 nonwoven material).
Regarding claim 9, BÄCK discloses the disposable article according to claim 1. BÄCK further discloses the article further comprises an absorbent assembly (¶0035 absorbent assembly) comprising an absorbent core 2, a liquid permeable topsheet 26 and a liquid impermeable backsheet 25, the absorbent core being enclosed between the liquid permeable topsheet and the liquid impermeable backsheet (¶0035 enclosed between the backsheet material and the topsheet material form an absorbent assembly).
Regarding claim 10, BÄCK discloses the disposable article according to claim 9. BÄCK further discloses the liquid permeable topsheet and/or the liquid impermeable backsheet overlies the first and the second crotch elastic members (Fig. 3 shows elements 25 and 26 overlying first and second crotch elastic members 27,28).
Regarding claim 11, BÄCK discloses the disposable article according to claim 10. BÄCK further discloses each crotch elastic member has a shaped edge extending along the corresponding crotch leg edge section, the shaped edge of the crotch elastic member being aligned with a shaped edge of the liquid permeable topsheet and/or with a shaped edge of the liquid impermeable backsheet (Fig. 2 shows the elastic members 27 and 28 following the curvature of 19a and thus the transverse edge formed by the longitudinal extension of elastic members 27 and 28 is aligned with the edge forming leg holes 16 and 17 such that they follow the same curvature shape as they extend in the longitudinal direction).
Regarding claim 12, BÄCK discloses the disposable article according to claim 1. BÄCK further discloses the elastically stretchable front body panel and/or the elastically stretchable rear body panel comprises or consists of an elastic laminate 20, the elastic laminate comprising at least a first layer of fibrous material 21 and an elastic layer 23.
Regarding claim 13, BÄCK discloses the disposable article according to claim 12. BÄCK further discloses the elastic laminate comprises a second layer of fibrous material 22 and the elastic layer is an intermediate elastic layer arranged between the first and second layers of fibrous material (¶0046 elastic film located between said fibrous layers).
Regarding claim 14, BÄCK discloses the disposable article according to claim 12. BÄCK further discloses the elastic layer comprises or consists of a layer of elastic film (¶0046 elastic film).
Regarding claim 15, BÄCK discloses the disposable article according to claim 12. BÄCK further discloses the elastic layer comprises or consists of a layer of elastic nonwoven material (¶0049 elastic film, films are non-woven).
Regarding claim 16, BÄCK discloses the disposable article according to claim 1. BÄCK further discloses the elastically stretchable front body panel is formed from a continuous front body panel web which extends transversely across the width of the pant-type article between the first and the second front panel side edges (¶0045 extends continuously laterally across the width of the front portion between the first and second side edges) and wherein the elastically stretchable rear body panel is formed from a continuous rear body panel web which extends transversely across the width of the pant-type article between the first and the second rear panel side edges (¶0045 as well as continuously laterally across the width of the back portion between the first and second side edges).
Claim(s) 3-5 is/are rejected under 35 U.S.C. 103 as being unpatentable over BÄCK et al. (U.S. Publication 2017/0216105) in view of Van Gompel et al. (U.S. Patent No. 6,132,410) and Igaue et al. (U.S. Patent No. 4,743,241).
Regarding claims 3 and 5, BÄCK discloses the disposable article according to claim 1. BÄCK in view of Van Gompel does not expressly suggest each of the first and second crotch elastic members having a narrowed intermediate portion, the narrowed intermediate portion of the crotch elastic member being formed by cutting away a portion of the material in the crotch elastic member, the narrowed intermediate portion of the crotch elastic member being arranged between the front end portion and the rear end portion of the crotch elastic member (Claim 3), or the crotch elastic members comprising or consisting of elastic film, or elastic nonwoven (Claim 5).
However, Igaue, in the same field of endeavor of disposable pant-type articles (Fig. 5), teaches first and second crotch elastic members 6c having a narrowed intermediate portion (see W2 of below illustrative diagram of Fig. 5), the narrowed intermediate portion of the crotch elastic member being formed by cutting away a portion of the material in the crotch elastic member (Col. 4 line 47 cutaway), the narrowed intermediate portion of the crotch elastic member being arranged between a front end portion and a rear end portion of the crotch elastic member (narrowed intermediate portion exists between unnarrowed portions, see W1 in below illustrative diagram, that exists in front end 3 and rear end 2 of absorbent article and are as such front and rear end portions) for the purpose of providing a crotch elastic member 6c that surrounds an associated cutaway area 12 that allows for simplification and higher speed production in the process of manufacturing over positioning elastic members that curve along the contour of the associated cutaway areas (Col. 4 lines 59-68) (Claim 3) and the crotch elastic members comprising an elastic film (Col. 4 lines 25-27 plastic film exhibiting elasticity) (Claim 5).
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Illustrative diagram of Fig. 5 of Igaue.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have substituted the first and second crotch elastic members of BÄCK that performs the function of providing elastic sealing at the periphery of leg openings for the crotch elastic members of Igaue since these elements perform the same function of providing elastic sealing around the leg openings of the pant-type article. Simply substituting one elastic means for another would yield the predictable result of allowing a(n) leg opening edge to seal around a user through elastic means. See MPEP 2143.
Furthermore, one of ordinary skill in the art would have been motivated to perform this substitution for the purpose of providing a crotch elastic member 6c that surrounds an associated cutaway area 12 that allows for simplification and higher speed production in the process of manufacturing over positioning elastic members that curve along the contour of the associated cutaway areas (Col. 4 lines 59-68 of Igaue).
Regarding claim 4, BÄCK in view of Igaue suggest the disposable article according to claim 3. Igaue further suggests the substituted elastic member having an equal width at both the front end portion and the rear end portion and appears to position the elastic crotch member such that after the cutaway is taken the smallest width of the intermediate portion (W2 of above illustrative diagram of Fig. 5 of Igaue) appears to be about 75% of the original width of the elastic member that remains present in the front and back portions of the member which would equate to a ratio of 1:0.75. However, Igaue is silent as to the exact dimensions of the device and therefore does not expressly suggest the ratio of the width of the front and rear end portions to the smallest width of the intermediate portion of the crotch elastic member being from 1:0.5 to 1:0.9.
However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the ratio of the front and rear widths of BÄCK, as modified by Igaue, from between 1:0.5 and 1:0.9 as applicant appears to have placed no criticality on the claimed range (Page 5 lines 27-29 the width of the front end portion may be equal to the width of the rear end portion. A ratio between the width of the end portions and the smallest width of the intermediate portion may be from 1:0.5 to 1:0.9) and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). In the instant case, BÄCK in view of Igaue would not operate differently with the claimed range, and the disclosure of Igaue of cutting away a portion of the elastic member while still allowing the elastic member to surround the associated cutaway member (Col. 4 lines 59-68 of Igaue) discloses at minimum a ratio of at least below 1:1 and at least above 1:0.0 coupled with the ratio that the drawing of Iqaue would have suggested to one of ordinary skill in the art of approximately 1:0.75 discloses a range in which the claimed range would lie inside of (1:0.5 to 1:0.9 lies inside of 1:>0 to 1:<1) thus as applicant has seen to provide no criticality regarding the claimed range, a prima facie case of obviousness is herein considered to exist and as such the limitation is seen to have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention.
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over BÄCK et al. (U.S. Publication 2017/0216105) in view of Van Gompel et al. (U.S. Patent No. 6,132,410) and Kumasaka (U.S. Patent No. 6,482,195).
Regarding claim 7, BÄCK suggests the disposable article according to claim 6. BÄCK does not expressly disclose or suggest the reinforcing elastic features intersecting with and being attached to the first and the second crotch elastic members.
However, in the same field of endeavor of disposable pant-type articles (Fig. 2), Kumasaka teaches reinforcing elastic features 5c intersecting with (5c1 intersects 5a1) and being attached to (Col. 3 line 25 successively connected) first and second elastic members 5a for the purpose of successively connecting one to another in the longitudinal direction (Col. 3 lines 25-26).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the reinforcing elastic features of BÄCK to have intersected and attached to first and second elastic members, as taught by Kumasaka, for the purpose of successively connecting one to another in the longitudinal direction (Col. 3 lines 25-26) which would have provided the advantage of eliminating any potential gap in elasticity between the elastic members on the leg openings thus eliminating potential leakage at those gaps.
Claim(s) 17 and 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over BÄCK et al. (U.S. Publication 2017/0216105) in view of Van Gompel et al. (U.S. Patent No. 6,132,410) and Ashton (U.S. Publication 2003/0004488).
Regarding claims 17, BÄCK in view of Van Gompel suggest the disposable article according to claim 1.
Van Gompel while suggesting the front end portions and rear end portions being attached to the article, does not expressly suggest the attachment being in a non-tensioned state. Nor is there present disclose by BÄCK that is seen to remedy this deficiency.
However, Ashton, in the same field of endeavor of disposable pant-type articles, teaches attaching front and rear end portions 132 and 134 of first and second crotch elastic members 120 in a non-tensioned state with the remainder of the crotch elastic member, i.e. portion 136, being attached in a pre-tensioned state (¶0065 at the time of joining the outer leg cuff to the containment assembly, the crotch portion may be elastically extended to about 12%, while the remainder of the outer leg cuff may be joined to the containment assembly in a substantially relaxed state) for the purpose of differential extensibility to the leg surrounding portion to provide sustained dynamic fit, prevention of leakage, sustained wearer comfort, and desirable appearance (¶0012-¶0013).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the front and rear end portions of the elastic members suggested by BÄCK in view of Van Gompel to have been attached to the article in a non-tensioned state as taught by Ashton for the purpose of differential extensibility to the leg surrounding portion to provide sustained dynamic fit, prevention of leakage, sustained wearer comfort, and desirable appearance (¶0012-¶0013 of Ashton).
Regarding claim 18, BÄCK in view of Van Gompel and further in view of Ashton suggest the disposable article according to claim 17. BÄCK in view of Van Gompel and further in view of Ashton do not expressly suggest each of the non-tensioned front and rear end portions having a length of from 5% to 8% of the total length of the crotch elastic members, however, BÄCK further teaches the leg elastic members overlapping the elastic laminate by no more than 20 mm and no more than 15mm as well as potentially ending at the seam 34 meaning that elastic elements extend between 0 mm and 20 mm into the elastic laminate and the length p of the of the rear leg edge sections that is free from elastic member is described as at least 50 mm, at least 75 mm, or at least 100 mm ¶0070 suggesting a rear panel leg opening length of the overlap value plus the value of p thus equivalent to at least 50 mm with a percentage of the overlap in the rear region equal to between 0% to 40% of this distance.
Ashton further teaches that exemplary diapers may be suitable for use by wearers having leg circumferences ranging from 232 mm to about 294 mm (¶0083 ranging from about 232 mm to about 294 mm) with the circumference in the leg opening in the relaxed state being about 209 mm (¶0078 about 209 mm).
The teachings of BÄCK with a space between 50 mm -100 mm not occupied by elastic material and the overlap being no more than 20 mm, coupled with the teachings of Ashton of the relaxed unworn state of the circumference opening being about 209 mm, the dimension claimed of the non-tensioned front and rear end portions having a length of from 5% to 8% can be seen as a relative dimension dependent upon the size of the article and thus the relative length of crotch elastic member with BÄCK teaching a fixed maximum value of the overlapping portions of no more than 15 mm and Ashton teaching that the leg opening sizes are relative to the size of the wearer.
Since applicant has not given any criticality to why the dimension disclosed has any importance to the function of the claimed device (see Page 6 of applicant specification), the Federal Circuit 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. In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777. As such the limitation of the non-tensioned front and rear end portions having a length of from 5% to 8% of the total length of the crotch elastic members is not seen to render the current claims patentably distinct over BÄCK in view of Van Gompel and further in view of Ashton.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PETER DANIEL SMITH whose telephone number is (571)272-8564. The examiner can normally be reached Monday - Friday 7:30am-5:00pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sarah Al-Hashimi can be reached at 571-272-7159. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PETER DANIEL SMITH/Examiner, Art Unit 3781
/JESSICA ARBLE/Primary Examiner, Art Unit 3781
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