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 & 19 are amended. All claims are examined on the merits. No new matter is found.
Response to Arguments
Applicant's arguments filed 5/15/2026 have been fully considered but they are not persuasive.
Applicant first argues that Examiner erred in identifying the line of weakness in absorbent insert (100) of Kleuskens as the second periphery because after removing said absorbent insert, there is still a resident portion of said absorbent insert being left behind. Examiner respectfully contends that when the absorbent insert is torn at the line of weakness and then removed from the rest of the article, the removed absorbent insert would indeed have its periphery at the line of weakness.
Applicant secondly argues that Examiner did not provide sufficient evidence and relied to inherency to reject the limitation “the third periphery is positioned within and spaced apart from the second periphery for the entirety of the second periphery.” Examiner respectfully contends that the limitation was rejected under 35 U.S.C. 103 rationales rather than inherency. Examiner did provide an explanation that Kleuskens discloses a stack of absorbent inserts, each individually removable from the rest of the article via its own line of weakness, and given that a top absorbent insert is disclosed to be smaller than the absorbent insert directly underneath when torn at the line of weakness, one skilled in the art would have been guided by such disclosure to arrive at an article that reads on the current claim.
Applicant thirdly argues that Kleuskens teaches away from the limitations of claim 1 because [0062] discloses alternatingly-sized absorbent inserts instead of progressively smaller absorbent inserts. Examiner respectfully contends that Kleuskens is simply describing two non-limiting examples – in one example the absorbent insert 100 (corresponds to the claimed second layer) is smaller than the second absorbent insert 102 (corresponds to the claimed third layer) and in another example the absorbent insert 100 is larger than the second absorbent insert 102. This disclosure does not disclose whether or not absorbent insert 100 is smaller or larger than the chassis absorbent unit 58 (corresponds to the claimed first layer), but given the disclosure that the absorbent insert 100 is bonded to the underlying chassis absorbent unit 58 (see Fig. 18), it can be reasoned that absorbent insert 100 should always be smaller than the chassis absorbent unit 58. Subsequently, one skilled in the art would arrive at two scenarios: (1) chassis absorbent unit 58 is larger than absorbent insert 100, which in turn is larger than second absorbent insert 102, and (2) chassis absorbent unit 58 is larger than absorbent insert 100, which in turn is smaller than second absorbent insert 102. As such, Examiner maintains that Kleuskens renders claim 1 obvious.
Applicant finally argues that because the absorbent insert is torn at the line of weakness and leaving behind a remaining portion (140, Fig. 19), one cannot consider the absorbent insert as removable. Examiner respectfully contends that the claim does not explicitly require that the absorbent insert in its entirety, including any portions that are in contact with the first layer, be removed from the first layer. Kleuskens clearly shows a majority portion (120) of the absorbent insert (100) being removed (see Fig. 19) and thus reads on the claimed subject matter.
Applicant did not address the non-statutory double patenting rejection presented in the Non-Final Rejection mailed on 2/18/2026 and has not filed a Terminal Disclaimer to overcome the rejection. As such, the non-statutory double patenting rejection is repeated below.
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.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-5 & 10-13 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-3, 15-16, 18 of U.S. Patent No. 11,969,326. Although the claims at issue are not identical, they are not patentably distinct from each other because said patented claim 1 recites all of the limitations in the current claim 1, including an absorbent article having three layers, wherein each layer has a periphery, a backsheet, an absorbent core, and a topsheet, the third layer periphery being entirely within the second layer periphery, and the second layer periphery being entirely within the first layer periphery. The patented claim 1 recites additional limitations found in the current claims 2-3. The patented claims 2-3, 15-16, & 18 read on the current claims 4-5 & 10-12, 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 1-4, 9-10, 12-13, 15-16 are rejected under 35 U.S.C. 103 as being unpatentable over Kleuskens et al. (US 2017/0216111).
Re Claim 1, Kleuskens discloses an absorbent article comprising:
a first layer (chassis absorbent unit 58) comprising:
a first periphery (formed by the edges of chassis topsheet 96 and chassis backsheet 98, see e.g., Figs. 17-19);
a first liquid impervious backsheet (chassis backsheet 98);
a first absorbent core (chassis absorbent core 59); and
a first moisture pervious topsheet (chassis topsheet 96);
a second layer (absorbent insert 100) comprising:
a second periphery (when line of weakness 150 is ruptured, the second periphery is exposed, see Figs. 17-19);
a second liquid impervious backsheet (insert backsheet 104);
a second absorbent core (insert absorbent core 112); and
a second moisture pervious topsheet (insert topsheet 108); and
a third layer (second absorbent insert 102) comprising:
a third periphery ([0062] “a second absorbent insert 102 of relatively smaller dimensions can be bonded to the insert topsheet of the first-applied absorbent insert 100”);
a third liquid impervious backsheet (it is implied that all absorbent inserts have the same structure, [0062]);
a third absorbent core (it is implied that all absorbent inserts have the same structure, [0062]); and
a third moisture pervious topsheet (it is implied that all absorbent inserts have the same structure, [0062]);
wherein the second layer is removably attached to the first layer (via line of weakness 150, which can be ruptured to let the second layer be removed from the first layer, Figs. 18-19);
wherein the third layer is removably attached to the second layer (implied that all absorbent inserts are attached to the chassis in the same way, via bonded area 116, Fig. 17, [0067]); and
wherein the second periphery is positioned within and spaced apart from the first periphery for the entirety of the first periphery (see Fig. 17 where line of weakness 150 is entirely spaced apart from the solid contour line that defines chassis 58).
While Kleuskens does not make it explicitly clear that the third periphery is positioned within and spaced apart from the second periphery for the entirety of the second periphery, it can be gleaned from Kleuskens’s teachings that all absorbent inserts (100 and 102) are likely attached to the chassis via the bonded area (116, Fig. 17) such that each absorbent insert would be removed by tearing at a line of weakness (150) for that absorbent insert (as shown in Fig. 19), and leaving behind a resident portion (140, Fig. 19) that would remain bonded to the chassis (58). Given that Kleuskens also disclose the third layer (second absorbent insert 102) may be smaller than the first absorbent insert (100, [0062]), it can be reasoned that the third periphery (defined by the line of weakness in the third layer) would be positioned within and spaced apart from the second periphery (which is defined by the line of weakness 150 for the second layer/absorbent insert 100) for the entirety of the second periphery.
Re Claim 2, Kleuskens discloses claim 1 and further disclosing wherein the second backsheet contacts the first topsheet (see e.g., Fig. 18, when the article is worn in the crotch region, the pressure from the user’s body and the underwear that keeps the article against the user’s skin would eliminate any potential gaps between the second backsheet and the first topsheet).
Re Claim 3, Kleuskens discloses claim 1 and further discloses wherein the third backsheet contacts the second topsheet (since it is implied that the second absorbent insert 102 would be attached to the first absorbent insert 100 in the same way the first absorbent insert is attached to the chassis 58).
Re Claim 4, Kleuskens discloses claim 1 and further discloses wherein the second layer is removably attached to the first layer by an adhesive positioned between the second layer and the first layer ([0057] discloses the perimeter bonding can be adhesive).
Re Claim 9, Kleuskens discloses claim 1 and further discloses wherein the second layer has a generally hour-glass shape (after rupturing the line of weakness 150, see Fig. 17).
Re Claim 10, Kleuskens discloses an absorbent article comprising:
a first layer (chassis 58), a second layer (absorbent insert 100), and a third layer (second absorbent insert 102, [0062]); wherein an outside surface of the third layer is coupled to an inside surface of the second layer and an outside surface of the second layer is coupled to an inside surface of the first layer (implied from Figs. 18-19 and [0062]);
wherein the first layer, the second layer, and the third layer each comprise an absorbent core (chassis absorbent core 59 and insert absorbent cores 112) positioned between a liquid impervious backsheet (chassis backsheet 98 and insert backsheets 104) and a moisture pervious inner layer (chassis topsheet 96 and insert topsheets 108); and
wherein the third layer is nested into the second layer such that a periphery of the third layer is spaced inwardly from a periphery of the second layer around the entire second layer periphery, and the second layer is nested into the first layer such that the periphery of the second layer is spaced inwardly from a periphery of the first layer around the entire first layer periphery (implied from Figs. 17-19, where the insert 100 has a periphery smaller than that of the chassis 58 because the insert is removed by rupturing the line of weakness 150, best shown in Fig. 19).
Re Claim 12, Kleuskens discloses claim 10 and also discloses an adhesive positioned around a perimeter of each layer ([0057] discloses the perimeter bonding can be adhesive; note “around” in this claim is broadly interpreted to mean “surrounding”).
Re Claim 13, Kleuskens discloses claim 10 and further discloses wherein the absorbent article is a disposable incontinence pad ([0041] “an adult incontinence article”).
Re Claim 15, Kleuskens discloses claim 10 and further discloses wherein the absorbent core of the first layer comprises a core periphery that diverges from the periphery of the first layer such that a distance between the core periphery and the first layer periphery varies (Fig. 3 shows the contours of chassis absorbent core 59 being different from the topsheet 96 or backsheet 98).
Re Claim 16, Kleuskens discloses claim 10 and further disclosing a third layer tab (tab 160, given that third layer/second absorbent insert 102 would have the same construction as second layer/first absorbent insert 100 as implied in [0062]) extending from the periphery of the third layer.
Claims 5-8, 11, 14 are rejected under 35 U.S.C. 103 as being unpatentable over Kleuskens in view of Grenier (US 5,429,631).
Re Claims 5-6, Kleuskens discloses claim 4 but does not disclose wherein the adhesive is positioned on the second backsheet adjacent to a periphery of the second backsheet or wherein the adhesive extends across a peripheral area of the second backsheet and does not extend across a central area of the second backsheet. Kleuskens does contemplate using adhesive when joining the layers of the article together ([0058]) but does not provide details as to the location of the adhesive. Grenier discloses two sanitary napkins stacked together and wherein the top sanitary napkin is adhered to the bottom sanitary napkin via adhesive strips (162, 164, Fig. 3) disposed at the edges of the backsheet of the top sanitary napkin (col. 5 lines 29-33). It would have been obvious to one skilled in the art at the time of filing to modify Kleuskens by adding the backsheet adhesive strips to further secure stacked pads together (MPEP 2143).
Re Claims 7-8, Kleuskens discloses claim 1 but does not teach a release liner coupled to an outside surface of the first backsheet and wherein the release liner is coupled to the outside surface of the first backsheet via an adhesive in a plurality of spaced apart sites. Kleuskens discloses that the article is not limited to disposable diapers but also other articles such as disposable menstrual products. Grenier discloses a stacked article formed of multiple sanitary napkins, the bottom-most sanitary napkin having a plurality of spaced apart adhesive sites on its backsheet each covered by a release liner (178, Figs. 4-5). It would have been obvious to one skilled in the art at the time of filing to modify Kleuskens with Grenier such that the article, when configured as a disposable menstrual product, can be selectively attached to the crotch region of an underwear.
Re Claim 11, Kleuskens discloses claim 10 but does not teach a release liner coupled to the first layer. Kleuskens discloses that the article is not limited to disposable diapers but also other articles such as disposable menstrual products. Grenier discloses a stacked article formed of multiple sanitary napkins, the bottom-most sanitary napkin having a plurality of spaced apart adhesive sites on its backsheet each covered by a release liner (178, Figs. 4-5). It would have been obvious to one skilled in the art at the time of filing to modify Kleuskens with Grenier such that the article, when configured as a disposable menstrual product, can be selectively attached to the crotch region of an underwear.
Re Claim 14, Kleuskens discloses claim 10 but does not show wherein the absorbent core of the first layer comprises a core periphery that corresponds to the periphery of the first layer such that the core periphery is spaced from the first layer periphery by a consistent distance. Kleuskens instead shows a rectangular topsheet/backsheet with an hourglass-shaped absorbent core, thus the core periphery does not space from the first layer periphery by a constant distance. However, Kleuskens also discloses that the first layer absorbent core (59) can be any suitable shape or size ([0045]) and therefore simple shape changes, e.g., to a rectangular shape that matches the first layer periphery, would be obvious to one skilled in the art through routine experimentation.
Claims 17-20 are rejected under 35 U.S.C. 103 as being unpatentable over Kleuskens in view of Nukina et al. (US 6,730,067).
Re Claim 17, Kleuskens discloses claim 16 but does not teach wherein the third layer tab does not extend beyond the periphery of the second layer. Nukina discloses a stacked absorbent article wherein each pad has a tab, and the tab of the smallest pad in the stack does not extend past the periphery of the next size pad (see Fig. 10(a)). It would have been obvious to one skilled in the art at the time of filing to modify with Nukina’s teaching since such a tab configuration is known and sufficient to serve the function of letting the user grasp the corresponding pad.
Re Claim 18, Kleuskens discloses claim 17 and further disclosing a second layer tab extending from the periphery of the second layer (e.g., Fig. 3).
Re Claim 19, Kleuskens discloses claim 18 and further disclosing wherein the second layer tab does not extend beyond the periphery of the first layer (e.g., Fig. 3).
Re Claim 20, Kleuskens discloses claim 18 but does not explicitly disclose wherein the third layer tab does not overlap with the second layer tab. However, since Claim 17 already requires that the third layer tab does not extend beyond the second layer periphery and Kleuskens and Nukina disclose tabs that extend outward, the third layer tab, which is within the second layer periphery, is not able to overlap with the second layer tab, which is outside of the second layer periphery.
Conclusion
THIS ACTION IS MADE FINAL. 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.
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/SUSAN S SU/Primary Examiner, Art Unit 3781 13 June 2026
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