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 .
Specification
The specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required: The specification describes the claimed property of Fiber Orientation Disorder Level Test however the description and drawings do not clarify the property such that one of ordinary skill in the art can distinguish the invention from prior art. The measurement of z0 and z1 and regions 122 and 124 are not clear and therefore one of ordinary skill in the art would not be able to replicate the test to compare inventions.
Claim Rejections - 35 USC § 112
Claims 1-19 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. The property of Fiber Orientation Disorder Level Test is indefinite for failing to distinguish the claimed invention from prior art. Based on the specification [0130]-[0135], it appears that the property is based on the density in the first layer (region) and second layer (region). While z0 and z1 are two orientation zones, it is not clear how or what fiber orientation is being measured. For purposed of examination, the FODL will be interpreted as a different density in each region.
Claim Rejections - 35 USC § 102/103
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.
Claims 1-10 and 13-15 are rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Bishop et al (US5486166) as evidenced by Smith, II (US 3936555).
Bishop is directed to a fibrous nonwoven web surge layer for personal care absorbent articles and the like (Title). Bishop teaches the nonwoven is made from a plurality of fibers heat bonded to one another. Bishop teaches the nonwoven made from bonded carded webs of staple fibers that are sent through a combing or carding unit which further breaks (col. 4, lines 64-67) that breaks the fibers apart and aligns the staple fibers in the machine direction and then bonded by through air bonding (col. 5, lines 1-15).
Bishop teaches two layer embodiments as noted in col. 15.
The fibers formed from the aforementioned polymers may be short staple length fibers such as are used in the air-laying and the bonding and carding processes or longer more continuous fibers as are formed in, for example, the spunbond process. Typical staple fiber lengths will range between about 38 and about 51 millimeters, though lengths outside this range also may be used. For example, airlaying typically involves using fibers with lengths in the range of about 6 to about 19 millimeters. Fiber diameters will be governed by the surface area to void volume parameters set forth below. Typically, the fiber diameters will range between about 1.5 and about 16 denier with the target range being between about 3 and about 6 denier (col 5 and 6, lines 65-67, lines 1-11).
In Example 3, a two-layer structure was created including a first layer of the previously described three-denier BASF polyethylene sheath/polyester core bicomponent fibers having a basis weight of approximately 13 gsm. Next, a second layer was formed on top of the first layer and the two layers were then bonded together using hot air at approximately 129.degree. C. for approximately 4 seconds. The second layer contained a uniform mixture of 20 percent by weight of the previously-described Hoechst Celanese type 293 six-denier polyester fibers; 35 percent by weight of the BASF three-denier polyethylene sheath/polyester core bicomponent fibers; 40 percent by weight of the Hoechst Celanese type 183 1.5-denier polyester fibers and 5 percent by weight of 2.0 denier by 38 millimeter polyethylene sheath/polypropylene core ES-HB bicomponent fibers from Chisso Corporation of Osaka, Japan. The combined layers had a basis weight of 46.1 grams per square meter and the parameters for this material are set forth in Table 1 (col. 15, lines 1-32).
In Example 4, a second two-layer structure was created. This two-layer structure most closely resembles the current material being used in the commercially-available diapers of the assignee of record. The top layer was approximately 17 grams per square meter and contained the three-denier BASF polyethylene sheath/polyester core bicomponent fibers. The second or bottom layer contained a homogeneous mix of 60 percent by weight of the Hoechst Celanese 6.0 denier type 295 polyester fibers; 35 percent by weight of a 1.7 denier by 38 millimeter polyethylene sheath/polypropylene core type ES bicomponent fiber from Chisso Corporation of Osaka, Japan and 5 percent by weight of the 2.0 denier Chisso-type ES-HB polyethylene sheath/polypropylene core bicomponent fibers. The two layers were bonded together in the same manner and using the same conditions as the material described in Example 3, and the resultant material had a basis weight of 46.1 grams per square meter. The test results are set forth in Table 1 (col. 15, lines 33-50).
In both of example 3 and example 4 the first layer has a first staple fiber and the second layer has a second staple fiber and the fibers are bicomponent heat bondable fibers (col. 5, lines 45-55) that are heat bonded via through air bonding.
Bishop does not measure the property of fiber orientation disorder level.
As the FODL is interpreted to be a density difference in the nonwoven, as Bishop teaches the same materials and structure and method of making the dual layer nonwoven, it is reasonable to presume that the property is inherent to Bishop. When the reference discloses all the limitations of a claim except a property or function, and the examiner cannot determine whether or not the reference inherently possesses properties which anticipate or render obvious the claimed invention the examiner has basis for shifting the burden of proof to applicant as in In re Fitzgerald, 619 F.2d 67, 205 USPQ 594 (CCPA 1980). See MPEP § 2112- 2112.02
Evidence that the property of density difference in different fiber layers is inherent to Bishop is found in Smith, II.
Smith is directed to a textile fabric with a dense intensely entangled reticular fibrous structure and process for manufacture thereof are provided wherein staple fibers are needled into a high bulk density structure with a bulk density gradient wherein the bulk density increases from the back surface to the face surface of the structure (ABST).
Smith teaches the bulk density gradient of the needled structure may be accomplished by positioning a plurality of superimposed layers of staple fibers so that the average fiber denier and/or length of the fibers of the layers decreases from the back surface to the face surface, the average fiber deniers being 1/2 or less up to 8 or more, especially to 5, and the average fiber length being 3/4 inch or less up to 4 inches or more, especially 1 inch to 3 inches. The bulk density of the needled structure may be accomplished by laying on the face surface of the needled structure a web of at least one layer of relatively short loosely matted fibers (less than 2 inches, e.g., 1/16 to 3/4 inch) and needling the short fibers to increase the bulk density of the structure to at least 10 pounds per cubic foot, e.g., 12 pounds per cubic foot, and produce a dense region of bulk density higher than the bulk density of the remaining portion of the needled structure (col. 1, lines 38-55).
Smith II teaches that the difference in fiber diameter and length impacts the density of the nonwoven layer and that the density difference would be inherent to Bishop. A density difference is equated with the property of FODL and therefore the two layers have a difference in FODL.
As to claims 1 and 2, Bishop in view of Smitt II teach a layered nonwoven of different fiber sizes that have density difference or gradient which is equated with the claimed property of FODL between the first and second layers. While Bishop and Smith II do not measure FODL to obtain the values of 0.05 and 0.27, as Bishop and Smith teach the same material, structure and substantially the same method, it is reasonable to presume the property is inherent to Bishop.
As to claim 3, Bishop teaches a unitary structure as the layers are combined into one layer.
As to claim 4, Bishop teaches the nonwoven is carded through air bonded nonwoven as noted under claim 1.
As to claim 5, Bishop teaches different fibers in the first and second layers as noted in Example 3 and Example 4 (col. 15, 1-50).
As to claims 6 and 7, Bishop teaches the fibers of the first layer are polyethylene sheath/polyester core bicomponent fibers have size of 3 denier. 3 denier is approximately 18 micron in diameter based on a polyester density and less than 20 microns. Bishop teaches the fibers of the second layer are a mixture wherein some fibers are 1.5 denier polyester fibers and 1.5 denier fibers are 13 micron which is no less than 12 micron.
As to claim 8, Bishop teaches the first layer has 3 denier fiber and second layer 1.5 denier fibers but for the sake of naming the layers, the first and second layers can be reversed and Bishop teaches one layer has smaller fiber than the other which meets the claim limitation.
As to claim 9, Bishop teaches the first fibers can be polyester bicomponent and the second fibers are polyester and therefore the same fibers as based on polyester.
As to claims 10, Bishop the second layer comprises additional fibers and as the first and second layers can be name arbitrarily, the second layer of Bishop is equated with the first layer. The second layer of Bishop contains 3 types of fibers, 3 denier bicomponent, 2 denier PE/PP bicomponent in addition to the 1.5 denier polyester fibers.
As to claim 13-15, Bishop does not measure CD tensile factor, CD tensile strength nor thickness factor. As Bishop teaches the same materials, structure and substantially the same method, it is reasonable to presume the properties are inherent to Bishop. When the reference discloses all the limitations of a claim except a property or function, and the examiner cannot determine whether or not the reference inherently possesses properties which anticipate or render obvious the claimed invention the examiner has basis for shifting the burden of proof to applicant as in In re Fitzgerald, 619 F.2d 67, 205 USPQ 594 (CCPA 1980). See MPEP § 2112- 2112.02
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 11-12 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Bishop et al (US5486166) as evidenced by Smith, II (US 3936555).
As to claims 11, Bishop the second layer comprises additional fibers and as the first and second layers can be name arbitrarily, the second layer of Bishop is equated with the first layer. The second layer of Bishop contains 3 types of fibers, 3 denier bicomponent, 2 denier PE/PP bicomponent in addition to the 1.5 denier polyester fibers.
The nonwoven comprises 4 types of fibers as combined.
It would have been obvious to one of ordinary skill in the art before the effective filing date to include four types of fibers motivated to achieve the desired bonding and density gradient.
As to claim 12, Bishop teaches the basis weight of the two layer nonwovens are 46 gsm which is substantially the same as less than 45 gsm.
As to claim 16, Bishop teaches the invention is directed to personal care absorbent articles generally have a fluid permeable body side liner and a liquid impermeable backing layer with an absorbent core disposed therebetween. The material of the present invention is used as a surge layer disposed between the body side liner and the absorbent core. In addition, it is helpful if the surge layer of the present invention is attached to the liner and the absorbent core to promote liquid transfer (col. 2, lines 34-41). Bishop teaches an adsorbent article with a liquid pervious topsheet, the fluid permeable body side liner and the liquid impervious backsheet, the impermeable backing layer and the absorbent core between and the nonwoven substrate is incorporated into the absorbent article.
Claims 17 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Bishop et al (US5486166) as evidenced by Smith, II (US 3936555) and in view of Glackin et al (US5618280).
As to claim 17 and 19, Bishop does not teach the nonwoven substrate is placed on the outer side of the backsheet (claim 17) nor the outer side of the topsheet (claim 18).
Glackin is directed to a diaper wherein the absorbent article includes liquid impervious topsheet, a backsheet joined to the topsheet and an absorbent core positioned between the topsheet and the backsheet. The backsheet includes an inner layer of liquid impervious plastic material and an outer layer of nonwoven fibrous material wherein the outer layer is positioned between the side regions and extends from the rear waist region to the front waist region of the diaper.
Glackin teaches absorbent article has elasticized side panels and the fibrous outer layer simplifies the manufacturing process and does not inhibit the extensibility of the extensible portions of the diaper as well as provide improved feel and comfort for the wearer (col. 1 and 2, lines 52-67, 1-5).
It would have been obvious to one of ordinary skill in the art before the effective filing date to include an outer fibrous sheet motivated to improve the feel and comfort of the absorbent article.
As to claim 19, Glackin teaches elasticized side panels and the absorbent article has leg openings, and a front and back belt regions. Glackin teaches Such absorbent articles have a rear waist region, a front waist region, a crotch region, a central region, a pair of side regions, a pair of longitudinal edges, and a pair of end edges. The absorbent articles include a liquid impervious topsheet, a backsheet joined to the topsheet and an absorbent core positioned between the topsheet and the backsheet. The backsheet includes an inner layer of liquid impervious plastic material and an outer layer of nonwoven fibrous material wherein the outer layer is positioned between the side regions and extends from the rear waist region to the front waist region of the diaper. Glackin does not explicitly state “belt” region but instead refers to front waist and rear waist regions.
It would have been obvious to one of ordinary skill in the art before the effective filing date to include an outer fibrous sheet motivated to improve the feel and comfort of the absorbent article.
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Bishop et al (US5486166) as evidenced by Smith, II (US 3936555) and in view of Lee et al (US 5693037).
As to claim 18, Bishop does not teach the nonwoven substrate is placed on the wearer-facing surface.
Lee is directed to an absorbent article that has a double topsheet of a first fluid pervious topsheet 21 and a second fluid pervious topsheet 22 as shown in Fig. 1 (col. 3, lines 30-40). The first and second topsheets, 21 and 22, are compliant, soft feeling, and non-irritating to the wearer's skin. Further, the topsheets are liquid pervious permitting liquids (e.g., menses and/or urine) to readily penetrate through their thickness (col. 5, lines 45-60). The first and second topsheets are designed to allow fluid to pass through and the second topsheet capillaries are slightly smaller than the size of the first topsheet to create a capillary gradient to assist in the transmission of the fluid deposited on the first topsheet (col. 8, lines 4-34).
It would have been obvious to one of ordinary skill in the art before the effective filing date to provide for an additional topsheet motivated to adjust the fluid flow into the absorbent core.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNIFER A STEELE whose telephone number is (571)272-7115. The examiner can normally be reached 9-5:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Marla McConnell can be reached at 571-270-7692. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JENNIFER A STEELE/ Primary Examiner, Art Unit 1789
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