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 .
Applicant’s election without traverse of Group I, claims 1-22 in the reply filed on 6/24/26 is acknowledged.
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 1-22 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-24 of U.S. Patent No. 12,005,691. Although the claims at issue are not identical, they are not patentably distinct from each other because each claims an asymmetrical composite nonwoven textile comprising a first web, a second web and a central elastic layer wherein the first and second webs are needled through the central layer, wherein the first and second webs have different ratios of fibers having first, second, third and fourth deniers .
Claims 1-22 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-24 of copending Application No. 18/670,455 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because each claims an asymmetrical composite nonwoven textile comprising a first web, a second web and a central elastic layer wherein the first and second webs are needled through the central layer, wherein the first and second webs have different ratios of fibers having first, second, third and fourth deniers .
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claim(s) 1-22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Quantrille et al, U.S. Patent No. 5,393,599 in view of Chen et al, U.S. Patent Application No. 7,390,760.
Quantrille discloses a composite elastic fabric. The composite fabric comprises two fibrous webs which are on either side of an elastomeric layer. The elastomeric layer can be a web, net or apertured film The layers can be combined by hydroentangling. See col. 3, lines 21-39. The fibrous layers can comprise two nonwoven layers which include some binder fibers. See col. 4, lines 34-53. The hydroentangling of the layers forces fibers through the elastomeric layer to form an entangled structure. See col. 6, lines 63 – col. 7, lines 15. Instead of hydroentangling, the layers can also be combined by needling. See col. 8, lines 25-40. A variety of nonwoven fabrics can be employed including carded web, air laid or wet laid structure, as well as spunbond and meltblown fabrics. See col. 8, lines 57-68. The nonwovens can include bicomponent and multi-component fibers. See col. 11, lines 20-34. The other fibers can include staple and/or natural fibers, including polyester, polyolefins, nylon, acrylic, modacrylic, rayon, cellulose acetate, biodegradable synthetics, aramid, fluorocarbons, polyphenylene sulfide fibers, as well as wool, cotton, wood pulp fibers and glass or carbon fibers. See col. 11, lines 35-45. The binder fibers are present in amounts of 5-50 wt%, noting that more binder fibers make the fabric stiffer or boardy feeling. See col. 11, lines 46-55. The first web of fibers can be the same or different compared to the second web of fibers. For example, the webs can vary as to how many binder fibers, how many other fibers, and the types of binder and other fibers which are used. See col. 6, lines 17-32.
Quantrille differs from the claimed invention because it does not clearly disclose the first nonwoven has a first average denier per square centimeter, a second nonwoven has a second average denier per square centimeter which is less than the first average denier per square centimeter, the particular claimed denier values, ratio of first to second deniers, or the third number of fibers per square centimeter having a third denier, or the fourth number of fibers per square centimeter having a fourth denier, or the ratio of third to fourth denier.
However, Chen discloses a nonwoven material which can have a gradient structure. See col. 1, lines 53- 65. The nonwoven can comprise a mixture of coarse and fine fibers. See col. 1, lines 40-42. The structure can be used to make a variety of items including garments. See col. 2, lines 52-67. The gradient can be discrete areas having measurable differences resulting from the presence of fibers having different average diameters or average diameter ranges and/or from the presence of fibers of different types. The gradient can be in the thickness or z direction. The gradient can be produce differences in surface chemistry, wicking, contact angle, density, pore size, surface charge, zeta potential, fiber diameter, etc. See col. 9, lines 4-51. The gradient can also be in the x and/or y direction in addition to the z direction, and the gradients or zones can be hydrophobic, hydrophilic, elastomeric, non-elastomeric, highly porous, less porous, etc., based on the fibers present in each zone and further the basis weight, fiber diameter can also vary in different zones. See col. 12, lines 42-65. The asymmetric fabrics can be used to make garments which control moisture and move it away or towards a particular direction. See col. 21, lines 52-65. The fine fibers can have diameters of 0.5-100 microns while the coarse fibers can have diameters of 100-2000 microns. See col. 6, lines 50-67. These values would encompass the claimed deniers.
Therefore, it would have been obvious to have employed layers having gradients as the nonwoven layers in Quantrille, and to have selected the various proportions of the coarse and fine fibers which produced a structure having the desired properties and to have selected the number of layers needed to provide a fabric having the desired properties. Since Chen teaches that the structure can be used to form garments which direct or wick moisture in a particular direction, it would have been obvious to have selected fiber deniers and types which produced the desired flow of moisture towards or away from an inner or outer face of the garment depending on how the garment was being used.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Olgun, U.S. Patent Application Publication No. 2008/0241476. Olgun discloses an elastic nonwoven laminate comprising an elastic film layer laminated on at least one side and preferably both sides with asymmetrical nonwoven layers. See paragraph 0023. Olgun does not disclose entangling the layers together.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELIZABETH M IMANI whose telephone number is (571)272-1475. The examiner can normally be reached Monday-Wednesday 7AM-7:30; Thursday 10AM -2 PM.
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/ELIZABETH M IMANI/Primary Examiner, Art Unit 1789
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