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 .
In light of the supplemental amendment filed 01/29/2025 in which claims 1-13 were cancelled and claims 14-22 were added, claims 14-22 are pending in the instant application and are examined on the merits herein.
Priority
The instant application is a 371 of PCT/US2022/039659 filed 08/07/2022 which claims priority to U.S. Provisional App. no. 63/230,508 filed 08/06/2021.
Claims 14-22 receive priority to the prior-filed application, filed on 08/06/2021.
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they include the following reference character(s) not mentioned in the description: 1 (Fig. 1). Corrected drawing sheets in compliance with 37 CFR 1.121(d), or amendment to the specification to add the reference character(s) in the description in compliance with 37 CFR 1.121(b) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claims 14-16 and 18-19 are objected to because of the following informalities:
Claim 14 recites the limitation “wherein the polymeric fibers comprising a plurality” in ln. 3-4. This should read “wherein the polymeric fibers comprise a plurality”.
Further, claim 14 recites the limitation “water soluble copper compounds on the surface of the polymeric fibers” in ln. 7. This should read “water soluble copper compounds on a surface of the polymeric fibers”.
Claim 15 recites the limitation “the water soluble copper compounds on the surface” in ln. 1-2. This should read “the water soluble copper compounds on the surface of the polymeric fibers”.
Claim 16 recites the limitation “wherein the insoluble copper compounds are embedded” in ln. 1-2. This should read “wherein the water insoluble copper compounds are embedded”.
Claim 18 recites the limitation “wherein the copper compounds comprise one of cuprous oxide and cupric oxide” in ln. 1-2. This should read “wherein the water insoluble copper compounds comprise one of cuprous oxide and cupric oxide”.
Claim 19 recites the limitation “wherein the polymeric nonwoven material comprises polyethylene” in ln. 1-2. This statement is missing punctuation.
All suggestions are made in light of the specification and the independent claim.
Appropriate correction is required.
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 14-22 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 14 recites the limitation “wherein the top sheet comprises polyethylene fibers having between 1.0 and 5.0 wt.% of one or more of cuprous oxide and cupric oxide particles embedded in the fibers” in ln. 13-15. This limitation is indefinite in that it is unclear whether the polyethylene fibers having one or more of cuprous oxide and cupric oxide particles embedded in the polyethylene fibers of the top sheet are the same as the polymeric fibers comprising a plurality of first particles of water insoluble copper compounds embedded in at least a portion of the polymeric fibers of the nonwoven polymeric sheet that comprises the top sheet. For the sake of compact prosecution, the examiner is treating the fibers as though they are the same.
Further, claim 14 recites the limitation "100 and 500 ppm of one or more of copper sulfate particles on the surface of the fibers" in ln. 15-16. This limitation is indefinite in that it is unclear how the surface of the fibers can comprise both 100 and 500 ppm of copper sulfate particles and further it is unclear if the particles can only be copper sulfate or another copper compound. For the sake of compact prosecution, the examiner is treating the claim as though it reads “100-500 ppm of copper sulfate particles on the surface of the fibers”.
Further still, claim 14 recites the limitation “the polypropylene fibers are between 15 to 20 microns in diameter” in ln. 17-18. There is insufficient antecedent basis for the polypropylene fibers in the claim. For the sake of compact prosecution, the examiner is treating the claim as though the nonwoven polymeric sheet comprises polymeric fibers including polypropylene.
Claim 22 recites the limitation “wherein the concentration of water insoluble copper compounds embedded in the topsheet are between 0.1 wt.% and 1.0 wt.% of the total weight of the topsheet” in ln. 1-3. This limitation is indefinite in that it is unclear whether this is a total concentration of water insoluble copper compounds embedded in all of the fibers of the topsheet or if this is in reference to a concentration of water insoluble copper compounds in a specific type of fiber, such as the polyethylene fibers or the polypropylene fibers as recited in claim 1. For the sake of compact prosecution, the examiner is treating the claim as though it is in reference to the total concentration of water insoluble copper compounds in all of the fibers of the topsheet.
Claims 15-22 are dependent upon cancelled claim 1; therefore, there is insufficient antecedent basis for all of the limitations in the claims. For the sake of compact prosecution, the examiner is treating the claims as though they are dependent upon claim 14.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 21 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Although claim 21 recites the limitation “wherein the absorbent core comprises a concentration of water soluble copper compounds” and claim 14, which claim 21 is dependent upon, recites the limitation “wherein the absorbent core comprises…a plurality of second particles of water soluble copper compound”, claim 21 is considered not to further limit claim 14 in that claim 14 would be understood to comprise a concentration of water soluble copper compounds as the plurality of particles. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 103
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 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.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 14-22 are rejected under 35 U.S.C. 103 as being unpatentable over WO/02091977 A1 to Rajagopalan in view of WO/2006/100665 A2 to Gabbay (hereinafter referred to as Gabbay ‘665) as evidenced by WO/2008/029387 A1 to Gabbay (hereinafter referred to as Gabbay ‘387).
Regarding claim 14, Rajagopalan discloses a device for absorbing body fluids (Fig. 3-4, diaper 20; pg. 32 ln. 1-11, odor control layer 80 is omitted from the components of the diaper 20 when the OCM is dispersed within components of the diaper 20), comprising
a top sheet comprising a nonwoven polymeric sheet (Fig. 3-4, topsheet 24; pg. 26 ln. 18-29), wherein the nonwoven polymeric top sheet comprises polymeric fibers (pg. 26 ln. 18-29) and wherein the polymeric fibers comprise water soluble copper compounds on the surface of the polymeric fibers (pg. 4 ln. 10-27, odor control material [OCM] is a kind of functional material of the invention and may be provided in particle, fiber, fluid, and/or combinations thereof; pg. 8 ln. 6-34, functional material 231 may be physically or chemically bonded within a fibrous web W that it is dispersed within; pg. 12 ln. 14-16, OCM may include copper (II) sulfate; pg. 32 ln. 1-11, OCM may be dispersed uniformly within the topsheet 24 and the fluid storage layer 28); wherein the water soluble copper compounds on the surface of the polymeric fibers are present in an amount between 0.001-12 g/m (pg. 17 ln. 14-23);
an absorbent core (Fig. 3-4, fluid storage layer 28), wherein the absorbent core comprises a body fluid absorbent material (pg. 24 ln. 20-36) and a plurality of second particles of water soluble copper compound that release at least one of Cu+ ions and Cu++ ions upon contact with a body fluid embedded in the body fluid absorbent material (pg. 4 ln. 10-27, odor control material [OCM] is a kind of functional material of the invention and may be provided in particle, fiber, fluid, and/or combinations thereof; pg. 8 ln. 6-34, functional material 231 may be physically or chemically bonded within a fibrous web W that it is dispersed within; pg. 12 ln. 14-16, OCM may include copper (II) sulfate; pg. 32 ln. 1-11, OCM may be dispersed uniformly within the topsheet 24 and the fluid storage layer 28); and
a water insoluble back sheet (Fig. 3-4, backsheet 26; pg. 27 ln. 26-36),
wherein the absorbent core is between the top sheet and the back sheet (Fig. 4), and
wherein the top sheet comprises polyethylene fibers and polypropylene fibers (pg. 26 ln. 18-29).
Rajagopalan differs from the instantly claimed invention in that Rajagopalan fails to disclose the polymeric fibers of the nonwoven polymeric topsheet comprising a plurality of first particles of water insoluble copper compounds that release at least one of Cu+ ions and Cu++ ions upon contact with a body fluid embedded in at least a portion of the polymeric fibers, the polyethylene fibers of the topsheet comprising between 1.0 and 5.0 wt.% of one or more of cuprous oxide and cupric oxide particles embedded in the fibers, and the polypropylene fibers of the topsheet comprising particles of water insoluble copper compounds with 90% of the particles having a particle size between 1 to 2 microns.
Gabbay ‘665 teaches antimicrobial, antifungal, and antiviral polymeric materials that may be used in diapers (pg. 14) formed as polyethylene or polypropylene fibers comprising a plurality of first particles of water insoluble and non-dissolvable copper compounds that release at least one of Cu+ ions and Cu++ ions, such as cuprous oxide or cupric oxide, upon contact with a body fluid embedded in at least a portion of the polymeric fibers (pg. 5-6; pg. 10-11), the particles present in an amount between 0.25-5% of the total polymer weight (pg. 10-11), the particles embedded and protruding from the fibers (pg. 10-11), and having a particle size of 0.2-20 microns that can further be optimized dependent upon cost of the particles and ability of the fibers to be extruded (pg. 5-6; pg. 10-11).
Gabbay ‘387 similarly teaches polymeric fibers comprising cuprous oxide or cupric oxide particles to provide increased efficacy of antimicrobial and antiviral properties of the fibers (pg. 6-9).
It would be considered obvious to one of ordinary skill in the art before the effective filing date of the instant application to modify the polymeric fibers of Rajagopalan to comprise the water insoluble copper compounds of Gabbay ‘665, because Gabbay ‘665 teaches antimicrobial polymeric fibers comprising non-dissolvable copper oxide and that copper sulfate will dissolve (pg. 14; pg. 17) and Gabbay ‘387 teaches that copper sulfate will demonstrate limited efficacy due to the fact that the additional attached molecules inhibit the releasing of the correct copper oxide, which is not an issue with water insoluble cuprous or cupric oxide (pg. 6-7). Therefore, the additional copper compounds within the polymeric fibers will increase the efficacy of the copper compounds within the absorbent device to decrease odor over time.
Further, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the embedded particle weight in the polymers from 0.25-5% of the polymer weight to 1-5% of the polymer weight since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Further, applicant appears to have placed no criticality on the claimed range (see para. 0010 indicating the weight “may” be within the claimed range).
Further still, Gabbay ‘665 discloses (pg. 6) that while particle size is not a factor in being able to produce the polymeric fiber product, smaller particle sizes are less cost effective and the size of the particles can be limited based on the difficulty of the polymer to flow through the holes of a spinneret, in an extruder, or under a knife coater; therefore, it seems as though the size of the particles effect the cost of the polymeric fibers and the ability of the fibers to be extruded and can be considered a result effective variable. It appears that one of ordinary skill in the art would have had a reasonable expectation of success in modifying the modified Rajagopalan device to comprise embedded particles within the size range, as it involves only adjusting the dimension of a component disclosed to require adjustment. Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of the prior art by making 90% of the embedded water insoluble copper compound particles have a particle size of between 1-2 microns as a matter of routine optimization since it has been held that “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, 105 USPQ 233, 235 (CCPA 1955).
Further, Rajagopalan differs from the instantly claimed invention in that Rajagopalan fails to disclose wherein the polyethylene fibers comprise 100-500 ppm of copper sulfate particles on the surface of the fibers based upon the weight of the top sheet and the polypropylene fibers are between 15-20 microns in diameter.
Rajagopalan discloses (pg. 17 ln. 14-23) that the desired percentage of OCM in an odor control layer (in an absorbent article without an odor control layer, this may be considered any layer that comprises the OCM) will be readily determined through routine experimentation and that the percentage of the OCM to the layer to achieve a desired odor reduction/removal function and the desired liquid handling properties of the layer will be dictated by the characteristics of the OCM. Further, it appears that one of ordinary skill in the art would have had a reasonable expectation of success in modifying the Rajagopalan device to have an amount of OCM within the claimed range, as it involves only adjusting the dimension of a component disclosed to require adjustment. Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of the prior art by making the polyethylene fibers comprise 100-500 ppm of copper sulfate particles on the surface of the fibers based upon the weight of the top sheet as a matter of routine optimization since it has been held that “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, 105 USPQ 233, 235 (CCPA 1955).
Further, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the polypropylene fibers of Rajagopalan to have a diameter between 15-20 microns since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 SPQ 232 (1984). In the instant case, the nonwoven polymeric sheet of Rajagopalan would not operate differently with the claimed polypropylene fiber diameter and since the fibers must only be provided in a manner which allows for anchoring of the OCM, the nonwoven polymeric sheet would be considered to function appropriately with the claim fiber diameter. Further, it appears that applicant places no criticality on the range claimed, indicating simply that the diameter “may” be within the claimed ranges (specification para. 0011).
Regarding claim 15, the cited prior art suggests the invention of claim 14. Rajagopalan further discloses: wherein the water soluble copper compounds on the surface of the polymeric fibers are present in an amount between 0.001-12 g/m (pg. 17 ln. 14-23); however, the prior art differs from the instantly claimed invention in that the prior art fails to explicitly disclose wherein the water soluble copper compounds on the surface of the polymeric fibers are present in an amount between 0.1 wt.% and 1.0 wt.% of the total weight of the topsheet.
Rajagopalan discloses (pg. 17 ln. 14-23) that the desired percentage of OCM in an odor control layer (in an absorbent article without an odor control layer, this may be considered any layer that comprises the OCM) will be readily determined through routine experimentation and that the percentage of the OCM to the layer to achieve a desired odor reduction/removal function and the desired liquid handling properties of the layer will be dictated by the characteristics of the OCM. Further, it appears that one of ordinary skill in the art would have had a reasonable expectation of success in modifying the Rajagopalan device to have an amount of OCM within the claimed range, as it involves only adjusting the dimension of a component disclosed to require adjustment. Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of the prior art by making the amount of the water soluble copper compounds on the surface of the polymeric fibers be between 0.1-1.0 wt.% of the total weight of the topsheet as a matter of routine optimization since it has been held that “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, 105 USPQ 233, 235 (CCPA 1955).
Regarding claim 16, the cited prior art suggests the invention of claim 14. Gabbay ‘665 (per the rejection of claim 14) teaches wherein the water insoluble copper compounds are embedded and protruding from the surface of the polymeric fibers (pg. 5-6; pg. 10-11).
Regarding claim 17, the cited prior art suggests the invention of claim 14. Gabbay ‘665 (per the rejection of claim 14) teaches wherein the first particles of water insoluble copper compounds are one of copper oxides, copper iodides, and combinations thereof (pg. 5-6; pg. 10-11).
Regarding claim 18, the cited prior art suggests the invention of claim 14. Gabbay ‘665 (per the rejection of claim 14) teaches wherein the water insoluble copper compounds comprise one of cuprous oxide and cupric oxide (pg. 5-6; pg. 10-11).
Regarding claim 19, the cited prior art suggests the invention of claim 14. Rajagopalan further discloses: wherein the polymeric nonwoven material comprises polyethylene (pg. 26 ln. 18-29).
Regarding claim 20, the cited prior art suggests the invention of claim 14. Rajagopalan further discloses: wherein the body fluid absorbent material is a super absorbent polymer (pg. 24 ln. 20-36).
Regarding claim 21, the cited prior art suggests the invention of claim 14. Rajagopalan further discloses: wherein the absorbent core comprises a concentration of water soluble copper compounds (pg. 4 ln. 10-27, odor control material [OCM] is a kind of functional material of the invention and may be provided in particle, fiber, fluid, and/or combinations thereof; pg. 8 ln. 6-34, functional material 231 may be physically or chemically bonded within a fibrous web W that it is dispersed within; pg. 12 ln. 14-16, OCM may include copper (II) sulfate; pg. 32 ln. 1-11, OCM may be dispersed uniformly within the topsheet 24 and the fluid storage layer 28).
Regarding claim 22, the cited prior art suggests the invention of claim 14. Gabbay ‘665 (per the rejection of claim 14) teaches wherein the concentration of water insoluble copper compounds embedded in the polymeric fibers are between 0.25-5% of the total weight of the polymer (pg. 10-11); however, the prior art differs from the instantly claimed invention in that the prior art fails to explicitly disclose wherein the concentration of water insoluble copper compounds embedded in the topsheet are between 0.1 wt.% and 1.0 wt.% of the total weight of the top sheet.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the embedded particle weight in the polymers from 0.25-5% of the polymer weight to 1-5% of the total polymer weight of the topsheet since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Further, applicant appears to have placed no criticality on the claimed range (see para. 0011 indicating the weight “may” be within the claimed range).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US/2015/0209386 A1 to Gabbay and US/2014/0141073 A1 to Gabbay disclose copper-containing polymeric materials. US/2004/0167483 A1 to Gabbay discloses a disposable diaper comprising water-insoluble copper.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Linnae Raymond whose telephone number is (571)272-6894. The examiner can normally be reached M-F 8:00am to 4:00pm.
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, Sarah Al-Hashimi can be reached at (571)272-7159. 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.
/Linnae E. Raymond/Examiner, Art Unit 3781
/LESLIE R DEAK/Primary Examiner, Art Unit 3799 9 February 2026