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 .
Status of Claims
Claims 1-20 are pending, of which Claims 1 & 20 are independent. All claims are examined on the merits.
Examiner Comment
Examiner notes that Claim 8 is dependent from Claim 11. While it is acceptable for a claim to depend from a subsequent claim, Examiner suspects that Applicant intends for Claim 8 to depend from Claim 1. However, for prior art examination purpose, Examiner still treats Claim 8 as if it depends from Claim 11.
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.
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Claims 1-7, 9-15, 17-20 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-7, 9-19 of U.S. Patent No. 11,911,244 in view of Glaug et al. (US 2017/0181899). The patented claim 1 and 20 read on the current claim 1 and 19, respectively, including a body having a plurality of layer, each layer comprising absorbent peals and the petals are movable between a compacted configuration and to an expanded configuration, and the body portion comprises hemp. Patented claim 1 or 20 does not recite that the plurality of layers are square-shaped or triangle-shaped or that the body portion or string comprises hemp. Glaug discloses a tampon formed of some square-shaped (Fig. 5) layers that form petals. It would have been obvious to one skilled in the art at the time of filing to modify with Glaug since the simple substitution of a square-layer structure to yield predictable result establishes a prima facie case of obviousness. The patented claims 2-7, 9-19 read on the current claims 2-7, 9-12, 14, 13, 15, 17-20, respectively.
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.
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.
Claims 1-17, 20 are rejected under 35 U.S.C. 103 as being unpatentable over Kim (KR 20100101550, translation attached to this Office Action, obtained through Global Dossier) in view of Glaug et al. (US 2017/0181899) and Costa (US 2008/0154174).
Re Claim 1, Kim discloses an absorbent article comprising:
a body portion (the innermost petal can be considered as a body portion) extending along a first axis and having a proximal end (the top of the petal) and a distal end (bottom of the petal) spaced from the proximal end along the first axis;
a plurality of layers (clearly seen in Fig. 1) radially disposed about the body portion and spaced along the first axis, the plurality of layers each comprising one or more absorbent petals (10) each extending along a petal axis and having a petal end (the top end of each petal), wherein the petal axis of one of the petals of one of the layers is angularly offset to the petal axis of an adjacent petal of an adjacent layer with respect to the first axis (also clear from the figures),
wherein the one or more absorbent petals are movable between a compacted configuration (shown in Fig. 2) where each of the plurality of layers form a generally cylindrical shape and each of the petal ends generally point towards the proximal end of the body portion such that the petal axis configured to be substantially parallel with the first axis, and an expanded configuration (shown in Fig. 1) where the petal ends of the one or more absorbent petals are radially spaced from the first axis such that the petal axis of at least one of the absorbent petals is angled with respect to the first axis,
wherein the one or more absorbent petals, when introduced to a fluid, is configured to absorb the fluid and transition from the compacted configuration to the expanded configuration for preventing fluid leakage (see [0007] “… when the compressed insertion sanitary pad 200 absorbs secretions, the white absorbent petal 10 is decompressed due to moisture”); and
a string (20) coupled to the distal end of the body portion.
Kim does not disclose that the plurality of layers are square-shaped (shown in Fig. 5) or triangle-shaped. Glaug discloses various layers of a tampon (e.g., lower pledget 34 & leak shield 40) being formed of square-shaped layers (Fig. 5) and that these layers form petals around a circumference of the tampon (see Fig. 4). It would have been obvious to one skilled in the art at the time of filing to modify with Glaug as Glaug discloses that the shape of the layers may be varied ([0041]).
Kim also does not disclose that the body portion and/or the string comprises hemp. Costa discloses a tampon having a central/primary absorbent structure (20) surrounding by secondary absorbent structure formed into petals (30), wherein the absorbent structures may be made of hemp ([0029]). It would have been obvious to one skilled in the art at the time of filing to modify Kim with the material taught in Costa since the selection of a material suitable for its intended use (i.e., selecting hemp to be used as the absorbent material in a tampon) establishes prima facie case of obviousness (MPEP 2144.07).
Re Claim 2, Kim, Glaug and Costa combine to disclose claim 1 and Kim also discloses that the plurality of layers comprises an outer layer disposed about the axis, and an inner layer surrounded by the outer layer such that the inner layer is disposed between the outer layer and the body portion (Fig. 1 shows that there are multiple layers of petals). Although it is not expressly disclosed by Kim that wherein the outer layer absorbs the fluid before the inner layer such that the outer layer moves from the compacted configuration to the expanded configuration before the inner layer, but since the outer layer will be much more likely to be exposed to menses before the inner layer, it will naturally follow that the outer layer absorbs fluid before the inner layer of petals and subsequently also expand before the inner layer does.
Re Claim 3, Kim, Glaug and Costa combine to disclose claim 2 and Kim also discloses an intermediate layer (Fig. 1 shows there are multiple layers of petals). Although it is not expressly disclosed by Kim that wherein the intermediate layer absorbs the fluid before the inner layer such that the intermediate layer moves from the compacted configuration to the expanded configuration before the inner layer, but since the intermediate layer will be much more likely to be exposed to menses before the inner layer, it will naturally follow that the intermediate layer absorbs fluid before the inner layer of petals and subsequently also expand before the inner layer does.
Re Claim 4, Kim, Glaug and Costa combine to teach the invention of claim 3 but do not expressly disclose that wherein the intermediate layer is angularly offset from the inner and outer layer and the inner and outer layers are angularly aligned. However, based on Fig. 1, it can be seen that there are many petals arranged in several layers around the body portion or center of the rose. Most petals in adjacent layers can be seen to be angularly offset from each other (thus the intermediate layer is offset from both the outer and inner layers), and while not clearly depicted, it is more likely than not that one of the petals from the innermost layer (immediately adjacent the body portion/center of the rose) is angularly aligned with a petal in the outermost layer of the rose.
Re Claims 5-6, Kim, Glaug and Costa combine to disclose claim 1 but they do not teach wherein one or more absorbent petals each include a second end configured to form a wider portion that tapers toward the petal end or wherein the petal end is configured to taper to sharpened point, and wherein the second end is wider than the petal end. However, given that the plurality of layers are square-shaped and then compacted to form the tampon, there is necessarily more material bunched together at the bottom/distal end of the tampon and subsequently likely to result in the petals each having a second end, which is continuous with the second end of a circumferentially-adjacent petal, to form a wider portion.
Re Claims 7 & 9, Kim, Glaug and Costa combine to disclose claim 1, and Kim also discloses that the body portion is a core (the current Application defines “core” as “a material or combination of materials suitable for absorbing, distributing, collecting, and storing any type of bodily exudates” and the innermost petal(s) of Kim’s rose tampon is made of an absorbent fibrous material, thus is can reasonably be interpreted as a core) and the plurality of layers substantially or fully encloses the core in the compacted configuration (since the petal layer surround the core in expanding configuration and then compressed to form the compacted configuration, these petal layers necessarily substantially/fully enclose the core in the compacted configuration) .
Re Claim 10, Kim, Glaug and Costa combine to disclose claim 1, and Kim also discloses that wherein the plurality of layers forms a core (when the tampon is compacted as shown in Fig. 2, the entire tampon can be considered a “core”).
Re Claim 11, Kim, Glaug and Costa combine to disclose claim 1, and Kim also discloses that the plurality of layers comprises an outer layer disposed about the axis, an inner layer surrounded by the outer layer with respect to the axis such that the inner layer is disposed between the outer layer and the axis, and an intermediate layer surrounded by the outer layer with respect to the axis and surrounding the inner layer with respect to the axis (Fig. 1 shows that there are multiple layers of petals). Kim does not expressly disclose that wherein the petal axis of one of the petals of the outer layer is angularly aligned with the petal axis of one of the petals of the inner layer. However, based on Fig. 1, it can be seen that there are many petals arranged in several layers around the body portion or center of the rose. Therefore it is more likely than not that one of the petals from near the center of the rose will be angularly aligned with a petal at the outer layer(s) of the rose.
Re Claim 8, Kim, Glaug and Costa combine to disclose claim 1, and Kim also discloses that the petal ends of the plurality of layers forms a flower (e.g., [0007]) or star shape around the core in the expanded configuration.
Re Claim 12, Kim, Glaug and Costa combine to disclose claim 1, and Kim also discloses that wherein the plurality of layers and/or the petal ends are configured to radially expand from the first axis in response to fluid exposure ([0007] and Fig. 1).
Re Claims 13 & 15, Kim, Glaug and Costa combine to disclose claim 1, but Kim does not disclose that the plurality of layers including the absorbent petals comprises hemp or that the body portion, the plurality of layers, and/or the string is formed of hemp fiber. Costa discloses a tampon having a central/primary absorbent structure (20) surrounding by secondary absorbent structure formed into petals (30), wherein the absorbent structures may be made of hemp ([0029]). It would have been obvious to one skilled in the art at the time of filing to modify Kim with the material taught in Costa since the selection of a material suitable for its intended use (i.e., selecting hemp to be used as the absorbent material in a tampon) establishes prima facie case of obviousness (MPEP 2144.07).
Re Claim 14, Kim, Glaug and Costa combine to disclose claim 12, and after modification with Costa, the hemp would also include hemp fiber ([0029]), hemp oil, hemp extract, hemp probiotic, hemp remedy, hemp essence and combinations thereof.
Re Claims 16-17, Kim and Costa combine to teach the invention of Claim 14 or 1 but they do not expressly disclose that the amount of hemp in the body portion, the plurality of layers, and/or the string is greater than 80% by weight based on a total weight of the plurality of layers, and/or the string or that the amount of hemp fiber in the plurality of layers is greater than 50% by weight based on a total weight of the plurality of layers. However, since Costa seems to suggest that the absorbent material used may be entirely of a single type of fiber ([0029]), one skilled in the art at the time of filing would find it obvious to experiment with the disclosed materials to obtain workable percentages of the fiber in order to obtain a final product that may be low cost, easy to manufacture, and have sufficient absorbency for the intended consumers.
Re Claim 20, Kim discloses an absorbent article comprising:
a body portion (the innermost petal can be considered as a body portion) extending along a first axis and having a proximal end (the top of the petal) and a distal end (bottom of the petal) spaced from the proximal end along the first axis;
a plurality of layers (clearly seen in Fig. 1) radially disposed about the body portion and spaced along the first axis, the plurality of layers each comprising one or more absorbent petals (10) each extending along a petal axis and having a petal end (the top end of each petal), wherein the petal axis of one of the petals of one of the layers is angularly offset to the petal axis of an adjacent petal of an adjacent layer with respect to the first axis (also clear from the figures),
wherein the one or more absorbent petals are movable between a compacted configuration (shown in Fig. 2) where each of the plurality of layers form a generally cylindrical shape and each of the petal ends generally point towards the proximal end of the body portion such that the petal axis configured to be substantially parallel with the first axis, and an expanded configuration (shown in Fig. 1) where the petal ends of the one or more absorbent petals are radially spaced from the first axis such that the petal axis of at least one of the absorbent petals is angled with respect to the first axis,
wherein the one or more absorbent petals, when introduced to a fluid, is configured to absorb the fluid and transition from the compacted configuration to the expanded configuration for preventing fluid leakage (see [0007] “… when the compressed insertion sanitary pad 200 absorbs secretions, the white absorbent petal 10 is decompressed due to moisture”).
Kim does not disclose that the plurality of layers are square-shaped (shown in Fig. 5) or triangle-shaped. Glaug discloses various layers of a tampon (e.g., lower pledget 34 & leak shield 40) being formed of square-shaped layers (Fig. 5) and that these layers form petals around a circumference of the tampon (see Fig. 4). It would have been obvious to one skilled in the art at the time of filing to modify with Glaug as Glaug discloses that the shape of the layers may be varied ([0041]).
Kim also does not disclose that one or more absorbent petals comprise hemp in an amount greater than 40% by weight. Costa discloses a tampon having a central/primary absorbent structure (20) surrounding by secondary absorbent structure formed into petals (30), wherein the absorbent structures may be made of hemp ([0029]). It would have been obvious to one skilled in the art at the time of filing to modify Kim with the material taught in Costa since the selection of a material suitable for its intended use (i.e., selecting hemp to be used as the absorbent material in a tampon) establishes prima facie case of obviousness (MPEP 2144.07). Since Costa seems to suggest that the absorbent material used may be entirely of a single type of fiber ([0029]), one skilled in the art at the time of filing would find it obvious to experiment with the disclosed materials to obtain workable percentages of the fiber in order to obtain a final product that may be low cost, easy to manufacture, and have sufficient absorbency for the intended consumers.
Claims 18-19 are rejected under 35 U.S.C. 103 as being unpatentable over Kim and Costa as applied to claim 1 above, and further in view of Pauletti et al. (US 2004/0043071).
Re Claims 18-19, Kim and Costa combine to teach the invention of claim 1, but they do not disclose that wherein the body portion, the plurality of layers, and/or the string is infused with hemp oil or that the plurality of layers comprises cannabinoids for medicinal and/or therapeutic purposes. Pauletti discloses a method of delivering therapeutic substances via the vaginal mucosal surface of a user (Abstract), wherein the therapeutic substance may be cannabinoid (e.g., [0025], [0075]) and it may be formulated as a cream or ointment (e.g., [0024], [0102], note that cream and ointment has oil components) and impregnated into an absorbent tampon ([0119]). It would have been obvious to one skilled in the art at the time of filing to further modify Kim with Pauletti for the benefit of being able to quickly and safely deliver a therapeutic substance to the user while also absorbing menses of the user ([0058], [0060] of Pauletti).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Robinson (US 2,306,406) discloses a tampon made from a rectangular layer folded/compressed into a flower bud shape, with the corners of the rectangular layer forming the petals of the flower upon absorption of liquid.
Henson (US 2014/0012221) discloses a tampon formed from rectangular layers placed in an offset configuration (Fig. 8).
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/SUSAN S SU/Primary Examiner, Art Unit 3781 4 February 2026