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 .
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.
Claim 1-3 and 5-8,9-11, 13-18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 4-9 of U.S. Patent No. 11980567 B2 in view of Close US 2013/0006208.
Bolded sections indicate the additional elements found in 11980567 and underlined elements are found in the instant claims only.
US 11980567 B2
Instant Claims
A surgical infant diaper, comprising:
- a flexible body comprising an interior layer and an exterior layer;
-wherein the flexible body further comprises a front portion;
-wherein the flexible body is selectively movable between an open position and a closed position,
-wherein the closed position, an upper opening and a pair of leg openings are defined thereby;
-a central aperture disposed through the interior layer and the exterior layer of the front portion, the central aperture positioned to receive a penis of a wearer therethrough;
-an absorbent layer disposed between the interior layer and the exterior layer,
-wherein the central aperture extends through the absorbent layer;
-wherein a diameter of the central aperture through the absorbent layer is less than a diameter of the central aperture through the interior layer and the exterior layer.
4. The surgical infant diaper of claim 1, wherein a perimeter of the pair of leg openings comprises an elastic material therein, such that the pair of leg openings are biased radially inwardly.
And 9. A surgical infant diaper, comprising:
-a flexible body comprising an interior layer and an exterior layer;
-wherein the flexible body further comprises a front portion, a rear portion, and a central portion therebetween; (a diaper will have a front, read and central portion)
-wherein the flexible body is selectively movable between an open position and a closed position,
-wherein the closed position, an upper opening and a pair of leg openings are defined thereby;
-a central aperture disposed through the front portion, the central aperture positioned to receive a penis of a wearer therethrough.
-wherein a perimeter of the pair of leg openings comprises an elastic material therein, such that the pair of leg openings are biased radially inwardly;
Per claim 9: wherein the central portion comprises a width less than that of each of the front and rear portions
See claim 1 above
2 and 10. The surgical infant diaper of claim 1, further comprising an absorbent layer disposed between the interior layer and the exterior layer.
See claim 1 above
3 and 11. The surgical infant diaper of claim 1/9, wherein a perimeter of the central aperture comprises an absorbent material.
5. The surgical infant diaper of claim 1, wherein the central aperture tapers inwardly from an upper side thereof towards a lower side thereof.
5 and 14. The surgical infant diaper of claim 1/9, wherein the central aperture tapers inwardly from an upper side thereof towards the lower side thereof.
6. The surgical infant diaper of claim 1, wherein the upper opening further comprises an elastic material therein, such that the upper opening is biased radially inwardly.
6. and 15. The surgical infant diaper of claim 1/9, wherein the upper opening further comprises an elastic material therein, such that the upper opening is biased radially inwardly.
7. The surgical infant diaper of claim 1, wherein a pair of tabs extend from opposing ends, wherein the pair of tabs comprise fasteners thereon, the fasteners configured to removably secure to complementary fasteners disposed on an exterior surface of the front portion.
7 and 16. The surgical infant diaper of claim 1/9, wherein a pair of tabs extend from opposing ends of the rear portion, wherein the pair of tabs comprise fasteners thereon, the fasteners configured to removably secure to complementary fasteners disposed on an exterior surface of the front portion.
8. The surgical infant diaper of claim 1, wherein the exterior layer comprises a fluid impermeable material.
8 and 17. The surgical infant diaper of claim 1/9, wherein the exterior layer comprises a fluid impermeable material.
9. A surgical infant diaper, comprising:
-a flexible body comprising an interior layer and an exterior layer; wherein the flexible body further comprises a front portion;
-a pair of tabs affixed to opposing sides;
-wherein the flexible body is selectively movable between an open position and a closed position, wherein the closed position, an upper opening and
-a pair of leg openings are defined thereby; wherein the pair of tabs are configured to removably secure to fasteners disposed on an exterior surface of the front portion, such that the flexible body is retained in the closed position; wherein an upper edge of each of the pair of tabs is flush with the upper opening; a central aperture disposed through the interior layer and the exterior layer of the front portion, the central aperture positioned to receive a penis of a wearer therethrough;
an absorbent layer disposed between the interior layer and the exterior layer, wherein the central aperture extends through the absorbent layer; wherein a diameter of the central aperture through the absorbent layer is less than a diameter of the central aperture through the interior layer and the exterior layer.
18. A surgical infant diaper, comprising:
-a flexible body comprising an interior layer and an exterior layer; wherein the flexible body further comprises a front portion, a rear portion, and a central portion therebetween; wherein the central portion comprises a width less than that of each of the front portion and the rear portion, such that the front portion and rear portion each gradually taper towards the central portion; (a diaper will have a front, read and narrower central portion)
- a pair of tabs affixed to opposing sides of a distal end of the rear portion; (this is typical placement for diaper tabs)
-wherein the flexible body is selectively movable between an open position and a closed position, wherein the closed position, an upper opening and
-a pair of leg openings are defined thereby; wherein the pair of tabs are configured to removably secure to fasteners disposed on an exterior surface of the front portion, such that the flexible body is retained in the closed position; wherein an upper edge of each of the pair of tabs is flush with the upper opening; a central aperture disposed through the front portion, the central aperture positioned to receive a penis of a wearer therethrough.
Close teaches a diaper thereby being in the same field of endeavor. Close teaches the diaper has a front, central, and rear section and that the central section is known to be narrower and that the tabs are located on the rear portion (see annotated fig below).
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It would have been obvious to one ordinary skill in the art before the effective filling date to have shaped the diaper according as it is a known shape for a diaper.
Claims 1-18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-17 of U.S. Patent No. 11660227 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claims are boarder as such species anticipates genus.
US 11660227 B2
Instant claims
A surgical infant diaper, comprising:
- a flexible body comprising an interior layer and an exterior layer; wherein the flexible body further comprises a front portion, a rear portion, and a central portion therebetween;
- wherein the flexible body is selectively movable between an open position and a closed position,
-wherein the closed position, an upper opening and a pair of leg openings are defined thereby;
-a central aperture disposed through the interior layer and the exterior layer of the front portion, the central aperture positioned to receive a penis of a wearer therethrough;
-an absorbent layer disposed between the interior layer and the exterior layer,
-wherein the central aperture extends through the absorbent layer; wherein a diameter of the central aperture through the absorbent layer is less than a diameter of the central aperture through the interior layer and the exterior layer.
4. The surgical infant diaper of claim 1, wherein a perimeter of the pair of leg openings comprises an elastic material therein, such that the pair of leg openings are biased radially inwardly.
A surgical infant diaper, comprising:
- a flexible body comprising an interior layer and an exterior layer; wherein the flexible body further comprises a front portion, a rear portion, and a central portion therebetween;
-wherein the flexible body is selectively movable between an open position and a closed position,
-wherein the closed position, an upper opening and a pair of leg openings are defined thereby;
- a central aperture disposed through the front portion, the central aperture positioned to receive a penis of a wearer therethrough.
-wherein a perimeter of the pair of leg openings comprises an elastic material therein, such that the pair of leg openings are biased radially inwardly; and
See claim 1 above
2. The surgical infant diaper of claim 1, further comprising an absorbent layer disposed between the interior layer and the exterior layer.
.
2. The surgical infant diaper of claim 1, wherein a perimeter of the central aperture comprises a lip extending from the absorbent layer, such that the perimeter comprises a portion of the absorbent layer resting flush with the interior layer and the exterior layer.
3. The surgical infant diaper of claim 1, wherein a perimeter of the central aperture comprises an absorbent material.
3. The surgical infant diaper of claim 1, wherein the absorbent layer further comprises a barrier extending transversely across the central portion, the barrier configured to prevent fluid absorbed into the absorbent layer—from transferring between the front portion and the rear portion.
5. The surgical infant diaper of claim 1, wherein the central aperture tapers inwardly from an upper side thereof towards a lower side thereof.
6. The surgical infant diaper of claim 1, wherein the upper opening further comprises an elastic material therein, such that the upper opening is biased radially inwardly.
7. The surgical infant diaper of claim 1, wherein a pair of tabs extend from opposing ends of the rear portion, wherein the pair of tabs comprise fasteners thereon, the fasteners configured to removably secure to complementary fasteners disposed on an exterior surface of the front portion.
8. The surgical infant diaper of claim 1, wherein the exterior layer comprises a fluid impermeable material.
9. A surgical infant diaper, comprising: a flexible body comprising an interior layer and an exterior layer; wherein the flexible body further comprises a front portion, a rear portion, and a central portion therebetween; wherein the central portion comprises a width less than that of each of the front portion and the rear portion; wherein the flexible body is selectively movable between an open position and a closed position, wherein the closed position, an upper opening and a pair of leg openings are defined thereby; a central aperture disposed through the interior layer and the exterior layer of the front portion, the central aperture positioned to receive a penis of a wearer therethrough;
an absorbent layer disposed between the interior layer and the exterior layer, wherein the central aperture extends through the absorbent layer; wherein a diameter of the central aperture through the absorbent layer is less than a diameter of the central aperture through the interior layer and the exterior layer.
4. The surgical infant diaper of claim 1, wherein the central portion comprises a barrier therethrough, the barrier configured to prevent fluid transfer between the front portion and the rear portion.
5. The surgical infant diaper of claim 1, wherein the central aperture tapers inwardly from an upper side thereof towards the lower side thereof.
6. The surgical infant diaper of claim 1, wherein the upper opening further comprises an elastic material therein, such that the upper opening is biased radially inwardly.
7. The surgical infant diaper of claim 1, wherein a pair of tabs extend from opposing ends of the rear portion, wherein the pair of tabs comprise fasteners thereon, the fasteners configured to removably secure to complementary fasteners disposed on an exterior surface of the front portion.
8. The surgical infant diaper of claim 1, wherein the exterior layer comprises a fluid impermeable material.
9. A surgical infant diaper, comprising: a flexible body comprising an interior layer and an exterior layer; wherein the flexible body further comprises a front portion, a rear portion, and a central portion therebetween; wherein the central portion comprises a width less than that of each of the front portion and the rear portion; wherein the flexible body is selectively movable between an open position and a closed position, wherein the closed position, an upper opening and a pair of leg openings are defined thereby; a central aperture disposed through the front portion, the central aperture positioned to receive a penis of a wearer therethrough.
See claim 9 above
10. The surgical infant diaper of claim 9, further comprising an absorbent layer disposed between the interior layer and the exterior layer.
10. The surgical infant diaper of claim 9, wherein a perimeter of the central aperture comprises a lip extending from the absorbent layer, such that the perimeter comprises a portion of the absorbent layer resting flush with the interior layer and the exterior layer.
11. The surgical infant diaper of claim 9, wherein the absorbent layer further comprises a barrier extending transversely across the central portion, the barrier configured to prevent fluid absorbed into the absorbent layer—from transferring between the front portion and the rear portion.
12. The surgical infant diaper of claim 9, wherein a perimeter of the pair of leg openings comprises an elastic material therein, such that the pair of leg openings are biased radially inwardly.
13. The surgical infant diaper of claim 9, wherein the central aperture tapers inwardly from an upper side thereof towards a lower side thereof.
14. The surgical infant diaper of claim 9, wherein the upper opening further comprises an elastic material therein, such that the upper opening is biased radially inwardly.
15. The surgical infant diaper of claim 9, wherein a pair of tabs extend from opposing ends of the rear portion, wherein the pair of tabs comprise fasteners thereon, the fasteners configured to removably secure to complementary fasteners disposed on an exterior surface of the front portion.
16. The surgical infant diaper of claim 9, wherein the exterior layer comprises a fluid impermeable material.
17. A surgical infant diaper, comprising: a flexible body comprising an interior layer and an exterior layer; wherein the flexible body further comprises a front portion, a rear portion, and a central portion therebetween; wherein the central portion comprises a width less than that of each of the front portion and the rear portion, such that the front portion and the rear portion each gradually taper towards the central portion; a pair of tabs affixed to opposing sides of a distal end of the rear portion; wherein the flexible body is selectively movable between an open position and a closed position, wherein the closed position, an upper opening and a pair of leg openings are defined thereby; wherein the pair of tabs are configured to removably secure to fasteners disposed on an exterior surface of the front portion, such that the flexible body is retained in the closed position; wherein an upper edge of each of the pair of tabs is flush with the upper opening; a central aperture disposed through the interior layer and the exterior layer of the front portion, the central aperture positioned to receive a penis of a wearer therethrough;
an absorbent layer disposed between the interior layer and the exterior layer, wherein the central aperture extends through the absorbent layer; wherein a diameter of the central aperture through the absorbent layer is less than a diameter of the central aperture through the interior layer and the exterior layer.
11. The surgical infant diaper of claim 9, wherein a perimeter of the central aperture comprises an absorbent material.
12. The surgical infant diaper of claim 9, wherein the central portion comprises a barrier therethrough, the barrier configured to prevent fluid transfer between the front portion and the rear portion.
13. The surgical infant diaper of claim 9, wherein a perimeter of the pair of leg openings comprises an elastic material therein, such that the pair of leg openings are biased radially inwardly.
14. The surgical infant diaper of claim 9, wherein the central aperture tapers inwardly from an upper side thereof towards the lower side thereof.
15. The surgical infant diaper of claim 9, wherein the upper opening further comprises an elastic material therein, such that the upper opening is biased radially inwardly.
16. The surgical infant diaper of claim 9, wherein a pair of tabs extend from opposing ends of the rear portion, wherein the pair of tabs comprise fasteners thereon, the fasteners configured to removably secure to complementary fasteners disposed on an exterior surface of the front portion.
17. The surgical infant diaper of claim 9, wherein the exterior layer comprises a fluid impermeable material.
18. A surgical infant diaper, comprising: a flexible body comprising an interior layer and an exterior layer; wherein the flexible body further comprises a front portion, a rear portion, and a central portion therebetween; wherein the central portion comprises a width less than that of each of the front portion and the rear portion, such that the front portion and rear portion each gradually taper towards the central portion; a pair of tabs affixed to opposing sides of a distal end of the rear portion; wherein the flexible body is selectively movable between an open position and a closed position, wherein the closed position, an upper opening and a pair of leg openings are defined thereby; wherein the pair of tabs are configured to removably secure to fasteners disposed on an exterior surface of the front portion, such that the flexible body is retained in the closed position; wherein an upper edge of each of the pair of tabs is flush with the upper opening; a central aperture disposed through the front portion, the central aperture positioned to receive a penis of a wearer therethrough
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 5 are 14 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.
Claim 5 recites the limitation "the lower side" in line 2. There is insufficient antecedent basis for this limitation in the claim. Suggestion correction is “a lower side”.
Claim 14 recites the limitation "the lower side" in line 2. There is insufficient antecedent basis for this limitation in the claim. Suggestion correction is “a lower side”
Claim Rejections - 35 USC § 102
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-4, 6-13, and 15-18 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Close et al. US 2013/0006208 A1 (hereafter referred to as Close).
With regards to claim 1, Close discloses a surgical infant diaper (abstract and post-surgical uses [0002]), comprising:
a flexible body comprising an interior layer (surface layer, [0025]) and an exterior layer (22, [0024]); wherein the flexible body further comprises a front portion (or anterior 30, [0028]), a rear portion (or posterior 40, [0028]), and a central portion therebetween (the diaper has an hour glass shape thereby having a centralized portion where the anterior and posterior flaps meet, [0028]);
wherein the flexible body is selectively movable between an open position and a closed position ([0027 which discloses the open and closed shapes), wherein the closed position, an upper opening and a pair of leg openings are defined thereby ([0027] which further defines the leg opening and upper opening for the waist);
wherein a perimeter of the pair of leg openings comprises an elastic material therein, such that the pair of leg openings are biased radially inwardly ([0038] lines 1-7 which discloses the leg openings are elasticized);
a central aperture (59) disposed through the front portion (the aperture is disclosed in the front of the diaper, [0033] and Figure 2, N.B. 30 is the anterior or front portion) , the central aperture positioned to receive a penis of a wearer therethrough ([0033], it should be noted the claims as currently written only require an aperture in the front portion not through the interior and exterior layers).
With regards to claim 9, Close discloses a surgical infant diaper (abstract and post-surgical uses [0002]), comprising:
a flexible body comprising an interior layer (surface layer, [0025]) and an exterior layer (22, [0024]);
wherein the flexible body further comprises a front portion (or anterior 30, [0028]), a rear portion (or posterior 40, [0028]), and a central portion therebetween; wherein the central portion comprises a width less than that of each of the front portion and the rear portion (the diaper has an hour glass shape thereby having a centralized portion where the anterior and posterior flaps meet, [0028]);
wherein the flexible body is selectively movable between an open position and a closed position ([0027 which discloses the open and closed shapes), wherein the closed position, an upper opening and a pair of leg openings are defined thereby ([0027] which further defines the leg opening and upper opening for the waist);
a central aperture (59) disposed through the front portion (the aperture is disclosed in the front of the diaper, [0033] and Figure 2, N.B. 30 is the anterior or front portion) , the central aperture positioned to receive a penis of a wearer therethrough ([0033], it should be noted the claims as currently written only require an aperture in the front portion not through the interior and exterior layers).
With regards to claim 2 and 10, Close discloses further comprising an absorbent layer (24) disposed between the interior layer and the exterior layer ([0025 in particular lines 1-13 which disclose the inner layer may have layers such as “top” wicking layer and an absorbent layer below).
With regards to claim 3 and 11, Close discloses a perimeter of the central aperture comprises an absorbent material (the flap 50 which contains the aperture 59 maybe formed of absorbent material [0030]).
With regards to claim 4 and 12, Close discloses the central portion comprises a barrier (or flap 50) therethrough, the barrier configured to prevent fluid transfer between the front portion and the rear portion ([0032] discloses the flap is in the central portion or middle of the diaper and [0035 lines 41-45 disclose the flap prevents fluid travel between the two sections).
With regards to claim 13, Close discloses wherein a perimeter of the pair of leg openings comprises an elastic material therein, such that the pair of leg openings are biased radially inwardly ([0038] lines 1-7 which discloses the leg openings are elasticized).
With regards to claim 6 and 15, Close discloses the upper opening further comprises an elastic material therein, such that the upper opening is biased radially inwardly ([0038 lines 13-16 which disclose the waist maybe elasticized).
With regards to claim 7 and 16, Close discloses a pair of tabs (46A+B) extend from opposing ends of the rear portion, wherein the pair of tabs comprise fasteners thereon, the fasteners configured to removably secure to complementary fasteners (38A+B) disposed on an exterior surface of the front portion ([0026] which disclose the diaper fastening system).
With regards to claim 9 and 17, Close discloses the exterior layer comprises a fluid impermeable material ([0024]).
With regards to claim 18, Close discloses a surgical infant diaper (abstract and post-surgical uses [0002]), comprising:
a flexible body comprising an interior layer (surface layer, [0025]) and an exterior layer (22, [0024]); wherein the flexible body further comprises a front portion (or anterior 30, [0028]), a rear portion (or posterior 40, [0028]), and a central portion therebetween wherein the central portion comprises a width less than that of each of the front portion and the rear portion (the diaper has an hour glass shape thereby having a centralized portion where the anterior and posterior flaps meet, [0028]);
a pair of tabs (46A+B) extend from opposing ends of the rear portion ([0026] which disclose the diaper fastening system) wherein the flexible body is selectively movable between an open position and a closed position ([0027 which discloses the open and closed shapes), wherein the closed position, an upper opening and a pair of leg openings are defined thereby ([0027] which further defines the leg opening and upper opening for the waist); wherein an upper edge of each of the pair of tabs is flush with the upper opening (see figure 2 which shows the tabs starting the upper edge of the diaper)
a central aperture (59) disposed through the front portion (the aperture is disclosed in the front of the diaper, [0033] and Figure 2, N.B. 30 is the anterior or front portion) , the central aperture positioned to receive a penis of a wearer therethrough ([0033], it should be noted the claims as currently written only require an aperture in the front portion not through the interior and exterior layers).
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 5 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Close et al. US 2013/0006208 A1 (hereafter referred to as Close).
With regards to claims 5 and 14, Close fails to disclose wherein the central aperture tapers inwardly from an upper side thereof towards the lower side thereof.
Close teaches the opening is sized or able to be sized to fit the user’s penis ([0033] lines 11-19).
It would have been obvious to one or ordinary skill in the art before the effective filing date to change the shape the aperture in order to provide the best leak protection since Close teaches there’s a need for different shapes and sizes; furthermore, In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) supports absent persuasive evidence that the particular configuration is significant changing the shape is a matter of choice which a person of ordinary skill in the art would have found obvious.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Perez et al US 2004/0143232A1 discloses a standard diaper with hole cut for the penis for circumcision care.
Pickett US 1895343 teaches a surgical diaper with an opening for genital surgery.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GABRIELLA E BURNETTE whose telephone number is (571)272-9574. The examiner can normally be reached on M-S: 0830-1900 EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nicholas Weiss can be reached on 5712701775. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/GABRIELLA E BURNETTE/Examiner, Art Unit 3781
/NICHOLAS J. WEISS/Supervisory Patent Examiner, Art Unit 3781