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, 13 & 14 are independent. All claims are examined on the merits.
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 1-14, 18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13 of U.S. Patent No. 12,004,933. Although the claims at issue are not identical, they are not patentably distinct from each other because the current claim limitations can be found in the patented claims as shown in the table below. The patented independent claims 1 & 13 contain more details than the current independent claims.
current claim #
1
2
3
4
5
6
7
8
corresponding claim # in 12,004,933
1
2
3
4
5
6
7
8
current claim #
9
10
11
12
13
14
18
corresponding claim # in 12,004,933
9
10
11
12
13
14
5
Claims 15 & 20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 5 of U.S. Patent No. 12,004,933 in view of Thomas (US 2005/0228353). The patented claim 5 reads on the current claim 15 and 20 except that the nonwoven substrate forms a liquid pervious topsheet or liquid impervious backsheet of an absorbent article. Thomas discloses an apertured film having zones of apertures and zones without apertures, wherein the film is used as a topsheet or as a backsheet for an absorbent article ([0057]-[0058]). It would have been obvious to one skilled in the art at the time of filing to modify with Thomas since it is already well known in the industry to utilize apertured substrates in various locations of an absorbent article.
Claim 16 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 5 of U.S. Patent No. 12,004,933 in view of Arora et al. (US 2016/0136014). The patented claim 5 reads on the current claim 16 except that the substrate has a basis weight of 15-75 gsm. Arora discloses an apertured web for use in an absorbent article, wherein the web has a basis weight of 50 gsm ([0126]). It would have been obvious to one skilled in the art at the time of filing to modify with Arora as such a weight is appropriate for absorbent articles.
Claims 17 & 19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 5 of U.S. Patent No. 12,004,933 in view of Alikhan et al. (US 5,817,394). The patented claim 5 reads on the current claims 17 and 19 except that the non-aperture zones have a major dimension of greater than 15mm or an area greater than 150 mm2. Alikhan discloses an apertured substrate having zones of apertures and discrete zones without apertures, wherein the discrete zones without apertures have an area of approximately 16.5 mm by 16.5 mm, which is 272 mm2, see col. 9 lines 33-39 disclosing dimensions on the bonding roll that creates the patterns on the substrate). It would be obvious to one skilled in the art at the time of filing to modify with Alikhan’s dimensions as those are known in the industry to be appropriate for substrates used in absorbent articles.
Allowable Subject Matter
Claims 1-20 contain allowable subject matter. Note that all claims are rejected under nonstatutory double patenting in view of U.S. Patent 12,044,933.
The following is a statement of reasons for the indication of allowable subject matter:
Alikhan et al. (US 5,817,394) is considered to be the closest prior art of record.
Re Claims 1, 13 & 14, Alikhan discloses a nonwoven substrate (the nonwoven substrate can be (i) first nonwoven layer 12, (ii) second nonwoven layer 22, or (iii) nonwoven fabric 10, which includes both the first nonwoven layer 12 and the second nonwoven layer 22) comprising:
a) a top surface (see in Fig. 2);
b) a bottom surface (see in Fig. 2); and
c) a plurality of apertures (30), each of which extends from the top surface through said nonwoven substrate to the bottom surface (clearly shown in Fig. 2),
wherein said plurality of apertures define a plurality of discrete non-aperture zones (lightly bonded areas 19);
wherein each of said plurality of discrete non-aperture zones has a periphery formed by a continuous line of apertures (clearly seen in Fig. 1), with adjacent apertures being spaced apart by an edge-to-edge distance of no more than 3mm (see Figs. 5-6 showing a spacing of about twice the diameter of an aperture, and Col. 8 lines 39-44 disclosing the size of the aperture to be advantageously at 29-277 µm, thus the spacing is at most 554 µm);
wherein each of said plurality of discrete non-aperture zones is substantially free of apertures within the periphery;
wherein some of said plurality of discrete non-aperture zones have an area of 100 mm² or more (Col. 9 lines 33-39 discloses the dimensions of the features on a bonding roll, shown in Fig. 3C, that can create the hexagonal non-aperture zone 19, it can be assumed that the non- aperture zone would have the same area as the feature on the bonding roll, thus yielding an area of about 16.5 mm by 16.5 mm, which is 272 mm²);
wherein said plurality of apertures further define one or more aperture zones (each continuous line can be interpreted as an aperture zone); and
wherein each of said one or more aperture zones comprises four or more apertures therein (see Fig. 1).
Alikhan does not expressly disclose wherein the area ratio of said plurality of discrete non-aperture zones over said nonwoven substrate ranges from 60% to 90%, that each of the plurality of apertures has a size greater than 0.2 mm2, or that each aperture within each of the aperture zones has at least three adjacent apertures.
Alikhan discloses a pattern that has similar aperture spacing and non-aperture zone size as the current Application and hence is likely to have non-aperture zone area ratio that fits within the claimed 60-90% range. However, Alikhan discloses apertures having an aperture size of up to 0.06 mm2 (col. 8 lines 36-44), which is an order of magnitude smaller than the current claimed size, i.e., well outside of the claimed range of >0.2 mm2. Alikhan also does not disclose aperture zones where each aperture is adjacent three apertures. The apertures in Alikhan are formed in a single string, thus each aperture can only be adjacent to two other apertures.
Arora et al. (US 2016/0136014) discloses a patterned apertured web having a plurality of non-apertured zones and a plurality of apertured zones. The apertures cover 5-50% of the area of the web (Abstract).
Thomas (US 2005/0228353) discloses a film comprising a design (12) formed on apertures (23) outlining shapes such as a flower-shape or heart-shape. Thomas does not explicitly disclose the size of the apertures.
Design patents D738,632, D720,544, and D508,613 disclose patterns that appear similar to that of the current disclosure. However, said references do no disclose dimensions or that the dots shown in the figures are necessarily apertures.
Conclusion
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/SUSAN S SU/Primary Examiner, Art Unit 3781 20 February 2026