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
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
The limitation “means for improving liquid permeability” in claim 2 is interpreted under 35 U.S.C. 112(f), with associated structures found in paragraphs 11 and 49-54 of the Specification filed November 29, 2023.
Claim Rejections - 35 USC § 102/103
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 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.
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 and 7 is/are rejected under 35 U.S.C. 102(a)(1) as anticipated by Chiba et al. (US 2020/0001270) or, in the alternative, under 35 U.S.C. 103 as obvious over Chiba and Fukudome et al. (US 2014/0031507).
Regarding claim 1, Chiba discloses an absorbent article (see par. 108) comprising a liquid-permeable front sheet (see par. 108, top sheet), a liquid- impermeable rear sheet (see par. 108, back sheet), and an absorber (see par. 108, absorbent material including water-absorbent resin) disposed between the front sheet and the rear sheet (see par. 108), wherein the absorber comprises a water-absorbent resin (see par. 108), and the water-absorbent resin has the following property (A):(A) a physiological saline retention capacity is 45 g/g or more and 70 g/g or less (see Table 1).
Chiba further discloses the same resin shape (see current application, par. 63 and Chiba, par. 24), same resin diameter (see current application, par. 65 and Chiba, par. 33), same polymerization step including water-soluble ethylenically unsaturated monomer (see current application, par. 70-74 and Chiba, par. 49-54), radical polymerization initiator (see current application, par. 75-77 and Chiba, par. 55-58), internal crosslinking agent (see current application, par. 78-79 and Chiba, par. 59-61), hydrocarbon dispersion medium (see current application, par. 80-81 and Chiba, par. 62-64), dispersion stabilizer including surfactant (see current application, par. 82-84 and Chiba, par. 66-69), polymeric dispersion agent (see current application, par. 85-87 and Chiba, par. 70-73), other components including thickener (see current application, par. 88-90 and Chiba, par. 76-78), same reverse phase suspension polymerization (see current application, par. 91-95 and Chiba, par. 81-86), same post-crosslinking step (see current application, par. 96-101 and Chiba, par. 90-96), and same drying step (see current application, par. 102-105 and Chiba, par. 97-101) for creating the water-absorbent resin.
Chiba does not specifically teach the water-absorbent resin having the following properties (B)-(C): (B) a physiological saline absorption capacity under a load of 4.14 kPa is at least 13 ml/g; and (C) a value of non-pressurization DW after 5 minutes is 50 ml/g or more and 80 ml/g or less. However, both the physiological saline absorption capacity and the DW or demand wettability are material properties of the water-absorbent resin. Discovery of a new property for a previously known composition cannot impart patentability of the known composition. When the structure or composition recited in the reference is substantially identical to that of the claims of the instant invention, claimed properties or functions presumed to be inherent (MPEP 2112-2112.01). A prima facie case of either anticipation or obviousness has been established when the reference discloses all the limitations of a claim (in this case, a water-absorbent resin having a physiological saline retention capacity is 45 g/g or more and 70 g/g less) except for a property or function (in the present case, the claimed physiological saline absorption capacity and value of non-pressurization DW) and the examiner cannot determine whether or not the reference inherently possesses properties that anticipate or render obvious the claimed invention but has a basis for shifting the burden of proof to applicant, as per In re Fitzgerald, 619 F.2d 67, 205 USPQ 594 (CCPA 1980). Since Chiba discloses a water-absorbent resin having the required physiological saline retention capacity as well as overlapping methods in creating the water-absorbent resin (see cited paragraphs for the current application mapped to the disclosure of Chiba above), it can be reasoned that the resin would also exhibit the same physiological saline absorption capacity and value of non-pressurization DW required by the claim.
Assuming for the sake of argument that the resin disclosed by Chiba does not qualify as inherently encompassing the required properties of B and C, claim 1 would have been obvious in view of the combination of Chiba and Fukudome. As explained above, Chiba specifically teaches all the limitations required by claim 1 except for (B) a physiological saline absorption capacity under a load of 4.14 kPa is at least 13 ml/g and (C) a value of non-pressurization DW after 5 minutes is 50 ml/g or more and 80 ml/g or less.
Fukudome discloses a water-absorbent resin (see Abstract) for an absorbent article (see par. 67), the resin produced with a water-soluble ethylenic unsaturated monomer (see par. 29), petroleum hydrocarbon dispersion medium (see par. 34), dispersion stabilizer (see par. 36), water-soluble azo initiator for radical polymerization (see par. 40-42), internal crosslinking agent (see par. 47-49), reversed-phase suspension polymerization method (see par. 52-53), post-crosslinking (see par. 57-61) and drying (see par. 62), with a physiological saline retention capacity is 45 g/g or more and 70 g/g or less (see Table 1) and a physiological saline absorption capacity under a load of 4.14 kPa is at least 13 ml/g (see Table 1). It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to replace the water-absorbent resin of Chiba with that of Fukudome as a matter of simple substitution, as both resins in Chiba and Fukudome are intended for absorption within absorbent articles and this would have yielded predictable results, namely, an absorbent article with an absorber that could perform absorption. Additionally, discovery of a new property for a previously known composition cannot impart patentability of the known composition. When the structure or composition recited in the reference is substantially identical to that of the claims of the instant invention, claimed properties or functions presumed to be inherent (MPEP 2112-2112.01). A prima facie case of either anticipation or obviousness has been established when the reference discloses all the limitations of a claim (in this case, a water-absorbent resin having a physiological saline retention capacity is 45 g/g or more and 70 g/g less and a physiological saline absorption capacity under a load of 4.14 kPa is at least 13 ml/g) except for a property or function (in the present case, the claimed value of non-pressurization DW) and the examiner cannot determine whether or not the reference inherently possesses properties that anticipate or render obvious the claimed invention but has a basis for shifting the burden of proof to applicant, as per In re Fitzgerald, 619 F.2d 67, 205 USPQ 594 (CCPA 1980). Since Fukudome discloses a water-absorbent resin having a saline retention capacity and saline absorption capacity falling within the claimed ranges, it can be reasoned that the resin would also exhibit the same 5-minute non-pressurized DW as claimed by Applicant.
Regarding claim 7, Chiba further discloses the absorber further comprises hydrophilic fibers (see par. 6-7, 38, 104).
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code can be found in an above section of this office action.
Claim(s) 2-5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chiba in view of Fukudome and further in view of Suzuki et al. (US 2016/0213525), Suzuki submitted in the IDS of November 29, 2023.
Regarding claim 2, Chiba and Fukudome disclose the limitations of claim 1 but do not disclose the absorbent article including a means for improving liquid permeability at at least one site among the front sheet, the absorber, and a portion between the front sheet and the absorber.
Suzuki discloses an absorbent article comprising an absorber positioned between an impermeable back surface sheet and a permeable front surface sheet (see par. 47), with a means for improving liquid permeability in the form of an embossed structure 21 at a point between the front sheet and absorber (see Figs. 2, 4; par. 62) and a groove/slit 20 in the absorber. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to include the means for improving liquid permeability as disclosed by Suzuki, which can be an embossed structure and groove/slit, in the absorbent article of Chiba and Fukudome, therefore allowing for maintaining of an effect of the recessed groove while not decreasing in absorption rate, and preventing wear feeling from deteriorating, even curing water absorption or when an external force is applied (see par. 12, 16-17).
Regarding claim 3, Chiba, Fukudome, and Suzuki disclose the limitations of claim 2 and as explained above, disclose the means for improving liquid permeability is an embossed structure and slit structure (see rejection of claim 2).
Regarding claim 4, Chiba, Fukudome, and Suzuki disclose the limitations of claim 2 and as explained above, the means for improving liquid permeability is a groove (see rejection of claim 2).
Regarding claim 5, Chiba, Fukudome, and Suzuki disclose the limitations of claim 2 and as explained above, the means for improving liquid permeability is an embossed structure provided in the absorber (see Suzuki, Fig. 4).
Claim(s) 2 and 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chiba in view of Fukudome and further in view of Takatori et al. (WO 2010/004894). Citations of Takatori are to the English Translation provided.
Regarding claim 2, Chiba and Fukudome disclose the limitations of claim 1 but do not disclose the absorbent article including a means for improving liquid permeability at at least one site among the front sheet, the absorber, and a portion between the front sheet and the absorber.
Takatori discloses an absorber comprising a water-absorbent resin with a means for improving liquid permeability in the form of liquid-acquisition diffusion sheet (see page 4, first paragraph under Description of Embodiments), the sheet being between the absorber and the and the front sheet (see page 4 describing the sheet above absorber and page 7, par. 3 with sheet sandwiched between liquid permeable sheet and liquid impermeable sheet, which would make it between the absorber and the liquid permeable front sheet). The sheet allows for the water absorbent performance of the water absorbent resin to not be hindered (see page 4, first paragraph under Description of Embodiments). It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have the absorbent article further include a means for improving liquid permeability as disclosed by Takatori, allowing for the water absorbent performance of the water absorbent resin to not be hindered.
Regarding claim 6, Chiba, Fukudome, and Takatori disclose the limitations of claim 2 and Takatori further discloses the means for improving liquid permeability is an arrangement of a liquid-acquisition diffusion sheet made of a hydrophilic nonwoven fabric having a basis weight of 15 g/m2 or more and 75 g/m2 or less (see page 6, par. 4) between the front sheet and the absorber (see rejection of claim 2 above).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ARIANA ZIMBOUSKI whose telephone number is (303)297-4665. The examiner can normally be reached 8:30 - 5:00 PST M-F.
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/ARIANA ZIMBOUSKI/ Primary Examiner, Art Unit 3781