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 .
Election/Restrictions
Applicant’s election without traverse of Group I, corresponding to Claims 1-16, in the reply filed on February 11, 2026 is acknowledged. Claims 17-24 are withdrawn from consideration.
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.
Claims 2, 3, 7, and 9-14 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 2 recites “wherein polypropylene resin has a molecular weight …” in lines 1-2. Is this a reference to the polypropylene resin recited in Claim 1? If so, then antecedent basis is already established in Claim 1, and the phrase should read “wherein the polypropylene resin has a molecular weight …” instead. If not, then appropriate correction or clarification is required. Currently, the scope of Claim 2 is unclear.
Claim 3 recites the limitation “the elastomeric polypropylene” in lines 2-3. There is insufficient antecedent basis for this limitation in the claim. Is this limitation referring to the “elastomeric polyolefin” of Claim 1? Or is this limitation referring to the “polypropylene resin” of Claim 1. As of Claim 1, the “elastomeric polyolefin” has not been limited to specifically be an elastomeric polypropylene. As such, the scope of Claim 3 is indefinite.
Claims 7, 12, 13, and 14 each recite the limitation “the identically prepared fabric does not include the elastomeric polyolefin and is drawn and attenuated at a cabin pressure of less than 4,200 Pa” in lines 3-4, in lines 3-5, in lines 3-5, and in lines 6-8, respectively. There is insufficient antecedent basis for this limitation in the claim. Nothing in Claims 7, 12, 13, or 14 require that the inventive fabric be drawn and attenuated at a cabin pressure of greater than or equal to 4,200 Pa. As such, the scope of the hypothetical fabric used for comparative purposes is unclear.
Claims 9, 10, and 11 utilize the phrase “machine/cross direction” multiple times throughout the claims. The scope of this limitation is unclear. Does this limitation define a ratio of the machine direction being divided by the cross-machine direction? Or is this limitation meant to define a cross-machine direction using a grouping of words that is unclear? The scope of Claim s 9-11, utilizing the phrase “machine/cross direction,” is indefinite.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) is considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See M.P.E.P. § 2173.05(c). In the present instance, Claim 9 recites the broad recitation of an average machine/cross direction bending softness ranging from 25 to 40 mm, and the claim also recites a narrower range of 28 to 38 mm. Claim 10 recites the broad recitation of a percent decrease in machine direction bending softness that is from about 20 to 40%, and the claim also recites that the machine direction bending softness is 25 to 35%, and the claim also recites that the machine direction bending softness is 26 to 32%, which represent a continuing line of the narrower statements of the range/limitation. Claim 10 recites the broad recitation of a percent decrease in machine/cross direction bending softness that is from about 20 to 40%, and the claim also recites that the machine direction bending softness is 25 to 35%, and the claim also recites that the machine direction bending softness is 22 to 30%, which represent a continuing line of the narrower statements of the range/limitation. Claim 11 uses a range within a range in every clause, making all of the clauses recited in Claim 11 indefinite. Claim 14 recites the broad recitation of an average fiber diameter of 0.8 to 1.6 dtex, followed by 0.9 to 1.4, followed by 1.2 to 1.35 dtex, which represent a continuing line of the narrower statements of the range/limitation. The claims are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. For these reasons, Claims 9-11 and 14 are indefinite.
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.
Claims 1, 3-9, and 12-16 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 U.S. Patent Application Publication No. 2009/0111347 to Peng et al. (“Peng”).
With regard to Claim 1, Peng discloses a nonwoven fabric comprising a plurality of fibers bonded to form a coherent web. See, e.g., Abstract, paragraph [0008], entire document. Peng discloses that the fibers comprise a polymeric blend of about 50-90%, by weight, of a first polymer which is an isotactic polypropylene homopolymer or random copolymer and about 10-50%, by weight, of a second polymer which is a reactor grade propylene based elastomer. Paragraphs [0027] to [0029]. With regard to the property of the fabric exhibiting a decrease in fiber fineness of at least 5% in comparison to an identically prepared nonwoven fabric that does not include the elastomeric polyolefin blended with the polypropylene resin, although Peng does not specifically disclose this property, it is reasonable to presume that the property is inherent to the material taught by Peng. Support for the presumption is found because Peng discloses a similar compositional construction, i.e., a polymer blend of polypropylene resin and elastomeric polyolefin, used in a similar process, forming the polymer blend into fibers for a nonwoven fabric, to provide a similar end use material, i.e., disposable absorbent products having improved softness. A limitation is considered to be inherent if it is the “natural result flowing from” the explicit disclosure of the prior art. Schering Corp. V. Geneva Pharms., Inc., 339 F.3d 1373, 1379 (Fed. Cir. 2003). The burden is upon the Applicant to show otherwise. The Patent and Trademark Office can require applicants to prove that prior art products do not necessarily or inherently possess characteristics of claimed products where claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes; burden of proof is on applicants where rejection based on inherency under 35 U.S.C. § 102 or on prima facie obviousness under 35 U.S.C. § 103, jointly or alternatively, and Patent and Trademark Office’s inability to manufacture products or to obtain and compare prior art products evidences fairness of this rejection. In re Best, Bolton, and Shaw, 195 USPQ 431 (CCPA 1977). A similar inherency analysis applies to the percent decrease in fiber dtex property recited in Claims 7 and 14, the machine bending softness and the cross direction bending softness recited in Claims 8 and 14, the average machine/cross direction bending softness recited in Claim 9, the increase in MD and CD tensile strengths recited in Claim 12, and the increase in percent elongations in one or more of the machine or cross directions recited in Claim 13. With regard to Claim 3, Peng discloses that the second polymer is preferably present in an amount of 10-30%, by weight. Paragraph [0100]. With regard to Claim 4, Peng discloses that the second polymer can comprise a propylene-alpha-olefin copolymer. Paragraphs [0068] to [0070]. With regard to Claim 5, Peng utilizes a propylene-alpha-olefin copolymer for the second polymer. As such, the parameters of the low isotacticity polypropylene, recited as an alternative embodiment to the propylene-alpha-olefin copolymer, are optional. With regard to Claims 6 and 14, Peng discloses that the fiber denier can be 0.1 to 2.0, paragraph [0088], which is about 0.11 to about 2.2 dtex. With regard to Claim 15, Peng discloses that their fibers are suitable for use in a spunbonded nonwoven fabric construction. Paragraph [0088]. With regard to Claim 16, Peng teaches that the nonwoven is suitable for use in a disposable absorbent article. Paragraph [0023].
Claims 1, 3-9, and 12-16 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 U.S. Patent Application Publication No. 2014/0088535 to Xu et al. (“Xu”).
With regard to Claims 1 and 15, Xu discloses an article having as a component a nonwoven fabric formed from spunbond fibers bonded together to form a coherent web, wherein the fibers comprise a first polyolefin and a second polyolefin. See, e.g., Abstract, paragraphs [0132] to [0138], entire document. Xu discloses that the first polyolefin comprises a polypropylene homopolymer and the second polymer comprises an elastomeric polyolefin, such as a propylene-alpha-olefin copolymer. Paragraphs [0018] and [0112]. With regard to the property of the fabric exhibiting a decrease in fiber fineness of at least 5% in comparison to an identically prepared nonwoven fabric that does not include the elastomeric polyolefin blended with the polypropylene resin, although Xu does not specifically disclose this property, it is reasonable to presume that the property is inherent to the material taught by Xu. Support for the presumption is found because Xu discloses a similar compositional construction, i.e., a polymer blend of polypropylene resin and elastomeric polyolefin, used in a similar process, forming the polymer blend into fibers for a nonwoven fabric, to provide a similar end use material, i.e., disposable absorbent products having improved softness. A limitation is considered to be inherent if it is the “natural result flowing from” the explicit disclosure of the prior art. Schering Corp. V. Geneva Pharms., Inc., 339 F.3d 1373, 1379 (Fed. Cir. 2003). The burden is upon the Applicant to show otherwise. The Patent and Trademark Office can require applicants to prove that prior art products do not necessarily or inherently possess characteristics of claimed products where claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes; burden of proof is on applicants where rejection based on inherency under 35 U.S.C. § 102 or on prima facie obviousness under 35 U.S.C. § 103, jointly or alternatively, and Patent and Trademark Office’s inability to manufacture products or to obtain and compare prior art products evidences fairness of this rejection. In re Best, Bolton, and Shaw, 195 USPQ 431 (CCPA 1977). A similar inherency analysis applies to the percent decrease in fiber dtex property recited in Claims 7 and 14, the machine bending softness and the cross direction bending softness recited in Claims 8 and 14, the average machine/cross direction bending softness recited in Claim 9, the increase in MD and CD tensile strengths recited in Claim 12, and the increase in percent elongations in one or more of the machine or cross directions recited in Claim 13. With regard to Claim 3, Xu discloses the elastomeric polypropylene is present in an amount of 16%, by weight. Paragraphs [0329], [0331], [0333], [0335], and [0336]. With regard to Claim 4, Xu discloses that the second polymer can comprise a propylene-alpha-olefin copolymer. Paragraph [0114]. With regard to Claim 5, Xu utilizes a propylene-alpha-olefin copolymer for the second polymer. As such, the parameters of the low isotacticity polypropylene, recited as an alternative embodiment to the propylene-alpha-olefin copolymer, are optional. With regard to Claims 6 and 14, Xu discloses that the fiber denier can be as low as 1.5 denier, paragraph [0234], which is about 1.6 dtex. With regard to Claim 16, Xu teaches that the nonwoven is suitable for use in a disposable absorbent article. Paragraph [0347].
Claims 1, 3-9, and 12-16 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 U.S. Patent Application Publication No. 2021/0301425 to Baradari et al. (“Baradari”).
With regard to Claims 1 and 15, Baradari discloses a bonded spunbond fabric made from a polymer blend that includes a high tacticity polyolefin such as polypropylene, a low tacticity polyolefin such as polypropylene and a propylene-ethylene copolymer for improving softness of a nonwoven web. See, e.g., Abstract, paragraph [0034], entire document. Baradari discloses that the propylene-ethylene copolymer comprises an elastomeric polyolefin. Paragraph [0026]. With regard to the property of the fabric exhibiting a decrease in fiber fineness of at least 5% in comparison to an identically prepared nonwoven fabric that does not include the elastomeric polyolefin blended with the polypropylene resin, although Baradari does not specifically disclose this property, it is reasonable to presume that the property is inherent to the material taught by Baradari. Support for the presumption is found because Baradari discloses a similar compositional construction, i.e., a polymer blend of polypropylene resin and elastomeric polyolefin, used in a similar process, forming the polymer blend into fibers for a nonwoven fabric, to provide a similar end use material, i.e., disposable absorbent products having improved softness. A limitation is considered to be inherent if it is the “natural result flowing from” the explicit disclosure of the prior art. Schering Corp. V. Geneva Pharms., Inc., 339 F.3d 1373, 1379 (Fed. Cir. 2003). The burden is upon the Applicant to show otherwise. The Patent and Trademark Office can require applicants to prove that prior art products do not necessarily or inherently possess characteristics of claimed products where claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes; burden of proof is on applicants where rejection based on inherency under 35 U.S.C. § 102 or on prima facie obviousness under 35 U.S.C. § 103, jointly or alternatively, and Patent and Trademark Office’s inability to manufacture products or to obtain and compare prior art products evidences fairness of this rejection. In re Best, Bolton, and Shaw, 195 USPQ 431 (CCPA 1977). A similar inherency analysis applies to the percent decrease in fiber dtex property recited in Claims 7 and 14, the machine bending softness and the cross direction bending softness recited in Claims 8 and 14, the average machine/cross direction bending softness recited in Claim 9, the increase in MD and CD tensile strengths recited in Claim 12, and the increase in percent elongations in one or more of the machine or cross directions recited in Claim 13. With regard to Claim 3, Baradari discloses the elastomeric polypropylene is present in an amount of 4% to 22%, by weight. Paragraph [0022]. With regard to Claim 4, Baradari discloses that the second polymer can comprise a propylene-alpha-olefin copolymer, such as Vistamaxx 7050. Paragraph [0021]. With regard to Claim 5, Baradari utilizes a propylene-alpha-olefin copolymer for the second polymer. As such, the parameters of the low isotacticity polypropylene, recited as an alternative embodiment to the propylene-alpha-olefin copolymer, are optional. With regard to Claims 6 and 14, Baradari discloses that the fiber diameter can be as low as 17 microns, paragraph [0031], which, for a propylene-based polymer fiber, is about 1.6 dtex. With regard to Claim 16, Baradari teaches that the nonwoven is suitable for use in a disposable absorbent article. Paragraph [0040].
Claim Rejections - 35 USC § 103
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Peng in view of U.S. Patent Application Publication No. 2018/0305534 to Kalfus et al. (“Kalfus”).
With regard to Claim 2, Peng discloses polypropylene resin can be formed using a metallocene or a Ziegler-Natta catalyst. Paragraphs [0013] and [0072]. However, Peng does not disclose a melting point or molecular weight of the polypropylene resin. Kalfus is also related to polypropylene compositions suitable for use in making spunbond fabric. See, e.g., Abstract, entire document. Kalfus teaches that suitable polypropylene parameters for forming spunbonded fibers include a molecular weight of about 200,00 to 600,000 g/mol and a melting point of 150 to 170 degrees C. Paragraphs [0021] and [0023]. It would have been obvious to a person having ordinary skill in the art at the time of filing the invention to provide the polypropylene resin disclosed by Peng with a molecular weight in the range of 120,000 to 300,000 g/mol and a melting temperature of 150 to 175 degrees C. because Kalfus discloses that such processing parameters are suitable for polypropylene resins in forming fibers in a spunbonded fabric construction, and because “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456 (CCPA 1955).
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Xu in view of Kalfus.
With regard to Claim 2, Xu does not disclose a melting point or molecular weight of the polypropylene resin, or that the polypropylene resin is formed using metallocene or Ziegler-Natta catalysts. Kalfus is also related to polypropylene compositions suitable for use in making spunbond fabric. See, e.g., Abstract, entire document. Kalfus discloses that polypropylene resins can be generated using either a Ziegler-Natta catalyst or a metallocene catalyst. Paragraphs [0034] and [0035]. Kalfus teaches that suitable polypropylene parameters for forming spunbonded fibers include a molecular weight of about 200,00 to 600,000 g/mol and a melting point of 150 to 170 degrees C. Paragraphs [0021] and [0023]. It would have been obvious to a person having ordinary skill in the art at the time of filing the invention to provide the polypropylene resin disclosed by Xu using a Ziegler-Natta catalyst or a metallocene catalyst, and with a molecular weight in the range of 120,000 to 300,000 g/mol and a melting temperature of 150 to 175 degrees C. because Kalfus discloses that such processing parameters are suitable for polypropylene resins in forming fibers in a spunbonded fabric construction, and because “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456 (CCPA 1955).
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Baradari in view of Kalfus.
With regard to Claim 2, Baradari discloses polypropylene resin can be formed using a metallocene or a Ziegler-Natta catalyst. Paragraph [0023]. However, Baradari does not disclose a melting point or molecular weight of the polypropylene resin. Kalfus is also related to polypropylene compositions suitable for use in making spunbond fabric. Kalfus teaches that suitable polypropylene parameters for forming spunbonded fibers include a molecular weight of about 200,00 to 600,000 g/mol and a melting point of 150 to 170 degrees C. Paragraphs [0021] and [0023]. It would have been obvious to a person having ordinary skill in the art at the time of filing the invention to provide the polypropylene resin disclosed by Baradari with a molecular weight in the range of 120,000 to 300,000 g/mol and a melting temperature of 150 to 175 degrees C. because Kalfus discloses that such processing parameters are suitable for polypropylene resins in forming fibers in a spunbonded fabric construction, and because “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456 (CCPA 1955).
Claims 10 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Peng in view of U.S. Patent Application Publication No. 2010/0233928 to Ferry et al. (“Ferry”).
With regard to Claims 10 and 11, Peng does not disclose the fibers are drawn and attenuated at a cabin pressure greater than 4,200 Pa. Ferry is also related to making spunbonded fabrics comprising fibers composed of polypropylene. See, e.g., Abstract, entire document. Ferry teaches that the cabin pressure during fiber drawing and attenuation is a result effective variable, and that “[t]he higher the cabin pressure, the more the polypropylene is attenuated, both in terms of speed and denier of the fiber that is formed therefrom. To achieve finer fibers, high cabin pressures are desirable.” Paragraph [0020]. Ferry teaches that a suitable cabin pressure ranges from 4,500 to 7,000 Pa. Id. It would have been obvious to a person having ordinary skill in the art at the time of filing the invention to draw and attenuate the fibers disclosed by Peng at a cabin pressure greater than 4,200 Pa in order to provide suitable processing conditions for making fine spunbond fibers, as shown to be known in the related art by Ferry, and because it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272 (CCPA 1980). With regard to the properties recited in Claims 10 and 11 of the machine bending softness and the cross direction bending softness, the average machine/cross direction bending softness, the increase in MD and CD tensile strengths, and the increase in percent elongations in one or more of the machine or cross directions in comparison to a hypothetical nonwoven fabric, although the combination of Peng with Ferry does not specifically disclose this set of properties, it is reasonable to presume that the property is inherent to the material taught by the combination of Peng with Ferry. Support for the presumption is found because Peng, as combined with Ferry, discloses a similar compositional construction, i.e., a polymer blend of polypropylene resin and elastomeric polyolefin, used in a similar process, forming the polymer blend into fibers for a nonwoven fabric, to provide a similar end use material, i.e., disposable absorbent products having improved softness. A limitation is considered to be inherent if it is the “natural result flowing from” the explicit disclosure of the prior art. Schering Corp. V. Geneva Pharms., Inc., 339 F.3d 1373, 1379 (Fed. Cir. 2003). The burden is upon the Applicant to show otherwise. The Patent and Trademark Office can require applicants to prove that prior art products do not necessarily or inherently possess characteristics of claimed products where claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes; burden of proof is on applicants where rejection based on inherency under 35 U.S.C. § 102 or on prima facie obviousness under 35 U.S.C. § 103, jointly or alternatively, and Patent and Trademark Office’s inability to manufacture products or to obtain and compare prior art products evidences fairness of this rejection. In re Best, Bolton, and Shaw, 195 USPQ 431 (CCPA 1977).
Claims 10 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Xu in view of Ferry.
With regard to Claims 10 and 11, Xu does not disclose the fibers are drawn and attenuated at a cabin pressure greater than 4,200 Pa. Ferry is also related to making spunbonded fabrics comprising fibers composed of polypropylene. See, e.g., Abstract, entire document. Ferry teaches that the cabin pressure during fiber drawing and attenuation is a result effective variable, and that “[t]he higher the cabin pressure, the more the polypropylene is attenuated, both in terms of speed and denier of the fiber that is formed therefrom. To achieve finer fibers, high cabin pressures are desirable.” Paragraph [0020]. Ferry teaches that a suitable cabin pressure ranges from 4,500 to 7,000 Pa. Id. It would have been obvious to a person having ordinary skill in the art at the time of filing the invention to draw and attenuate the fibers disclosed by Xu at a cabin pressure greater than 4,200 Pa in order to provide suitable processing conditions for making fine spunbond fibers, as shown to be known in the related art by Ferry, and because it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272 (CCPA 1980). With regard to the properties recited in Claims 10 and 11 of the machine bending softness and the cross direction bending softness, the average machine/cross direction bending softness, the increase in MD and CD tensile strengths, and the increase in percent elongations in one or more of the machine or cross directions in comparison to a hypothetical nonwoven fabric, although the combination of Xu with Ferry does not specifically disclose this set of properties, it is reasonable to presume that the property is inherent to the material taught by the combination of Xu with Ferry. Support for the presumption is found because Xu, as combined with Ferry, discloses a similar compositional construction, i.e., a polymer blend of polypropylene resin and elastomeric polyolefin, used in a similar process, forming the polymer blend into fibers for a nonwoven fabric, to provide a similar end use material, i.e., disposable absorbent products having improved softness. A limitation is considered to be inherent if it is the “natural result flowing from” the explicit disclosure of the prior art. Schering Corp. V. Geneva Pharms., Inc., 339 F.3d 1373, 1379 (Fed. Cir. 2003). The burden is upon the Applicant to show otherwise. The Patent and Trademark Office can require applicants to prove that prior art products do not necessarily or inherently possess characteristics of claimed products where claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes; burden of proof is on applicants where rejection based on inherency under 35 U.S.C. § 102 or on prima facie obviousness under 35 U.S.C. § 103, jointly or alternatively, and Patent and Trademark Office’s inability to manufacture products or to obtain and compare prior art products evidences fairness of this rejection. In re Best, Bolton, and Shaw, 195 USPQ 431 (CCPA 1977).
Claims 10 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Baradari in view of Ferry.
With regard to Claims 10 and 11, Baradari does not disclose the fibers are drawn and attenuated at a cabin pressure greater than 4,200 Pa. Ferry is also related to making spunbonded fabrics comprising fibers composed of polypropylene. See, e.g., Abstract, entire document. Ferry teaches that the cabin pressure during fiber drawing and attenuation is a result effective variable, and that “[t]he higher the cabin pressure, the more the polypropylene is attenuated, both in terms of speed and denier of the fiber that is formed therefrom. To achieve finer fibers, high cabin pressures are desirable.” Paragraph [0020]. Ferry teaches that a suitable cabin pressure ranges from 4,500 to 7,000 Pa. Id. It would have been obvious to a person having ordinary skill in the art at the time of filing the invention to draw and attenuate the fibers disclosed by Baradari at a cabin pressure greater than 4,200 Pa in order to provide suitable processing conditions for making fine spunbond fibers, as shown to be known in the related art by Ferry, and because it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272 (CCPA 1980). With regard to the properties recited in Claims 10 and 11 of the machine bending softness and the cross direction bending softness, the average machine/cross direction bending softness, the increase in MD and CD tensile strengths, and the increase in percent elongations in one or more of the machine or cross directions in comparison to a hypothetical nonwoven fabric, although the combination of Baradari with Ferry does not specifically disclose this set of properties, it is reasonable to presume that the property is inherent to the material taught by the combination of Baradari with Ferry. Support for the presumption is found because Baradari, as combined with Ferry, discloses a similar compositional construction, i.e., a polymer blend of polypropylene resin and elastomeric polyolefin, used in a similar process, forming the polymer blend into fibers for a nonwoven fabric, to provide a similar end use material, i.e., disposable absorbent products having improved softness. A limitation is considered to be inherent if it is the “natural result flowing from” the explicit disclosure of the prior art. Schering Corp. V. Geneva Pharms., Inc., 339 F.3d 1373, 1379 (Fed. Cir. 2003). The burden is upon the Applicant to show otherwise. The Patent and Trademark Office can require applicants to prove that prior art products do not necessarily or inherently possess characteristics of claimed products where claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes; burden of proof is on applicants where rejection based on inherency under 35 U.S.C. § 102 or on prima facie obviousness under 35 U.S.C. § 103, jointly or alternatively, and Patent and Trademark Office’s inability to manufacture products or to obtain and compare prior art products evidences fairness of this rejection. In re Best, Bolton, and Shaw, 195 USPQ 431 (CCPA 1977).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JEREMY R PIERCE whose telephone number is (571)270-1787. The examiner can normally be reached Monday - Friday, 9 am to 5 pm.
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, Marla D. 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.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
JEREMY R. PIERCE
Primary Examiner
Art Unit 1789
/JEREMY R PIERCE/ Primary Examiner, Art Unit 1789
Prosecution Insights