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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 08/18/2026 has been entered.
Response to Arguments
Applicant’s arguments, see remarks, filed 0, with respect to the rejection(s) of claim(s) 1 have been fully considered but are not persuasive.
Applicant disagrees with the office’s analysis for the following reasons: 1) one having ordinary skill in the art would not have modified Dupuy’s fleece layer in view of Kreuzer’s apertured material and 2) even if Kreuzer’s apertures were correlated to knitted openings, a skilled artisan would recognize Dupuy’s polar fleece material would not have been obvious to modify to achieve a higher open area as doing so would compromise its structural integrity.
Regarding 1), applicant argues that Kreuzer discloses nonwoven and film materials, not knitted materials. Even if Kreuzer discloses an aperture ratio between 10-45%, the apertures are not knitted openings. Rather they are holes formed in nonwoven fabrics or polymer films and are immaterial to the claims at issue. Applicant further argues that a person skilled in the art would recognize that the openings in Kreuzer’s apertured films or nonwovens are structurally and functionally distinct from the openings in a knitted fabric, which result from specific stitch configurations that interlock loops of yarn. The claims clarify that that the openings and open area are tied to the knitting process. Kreuzer’s apertures, in contrast, are formed from mechanical puncturing or perforation after formation. The examiner finds these arguments nonpersuasive, and others are moot in view of the updated rejection. First, the examiner notes that Dupuy is directed to a knitted polar fleece and thus comprises a knitted material. Based on applicant’s arguments, knitted fabrics are stitched in a way in which interlocking loops of yarn forms openings. Thus, as Dupuy is a knitted material it would have knitted openings upon its construction. However, should applicant argue that a specific process of knitting was used to create the claimed invention, the examiner relies on Park, provided under the rejection of claim 1.
Regarding 2), applicant argues that the office provides no evidence to support its assertion that Dupuy’s Polar fleece is suitable for the same purpose as Kreuzer’s topsheet. The examiner disagrees in that Dupuy was stated to be a topsheet taught to be a nonwoven (knitted) topsheet, suitable to wick fluid from a user to an absorbent. Further, polar fleece, as described by Dupuy (para. 0020 ) is a polyester material, where Kreuzer further teaches that nonwoven topsheet suitably may be made from synthetic fibers such as polyester (Kreuzer para. 0048). Kreuzer further teaches (para. 0046) that the topsheet with apertures passes fluid through the absorbent. Therefore, as both Dupuy, Kreuzer, and Park teach polyester based topsheets configured to pass fluid through to an absorbent within the device sufficient evidence was provided that the fleece is suitable for the same purpose. Applicant’s argument that the Polar fleece is not a nonwoven is not persuasive as Dupuy repeatedly teaches that the material is knitted and may be polyester, thus potentially made from the same materials as taught in Kreuzer. Further, Kreuzer teaches that any suitable topsheet may be used (para. 0045), where the examiner notes that Dupuy is a suitable topsheet.
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 (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.
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.
Claim(s) 1-3,10,13,16-18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dupuy US 2002/0010452 in view of Kreuzer US 2018/0338870, where Kreuzer was previously applied. Per the amendments filed 07/31/26, the rejection has been updated in view of Park et al. WO 2020204900, hereafter Park.
Regarding claim 1, Dupuy discloses a washable and reusable absorbent undergarment (figure 1-5, where paragraph 0010 discloses that both the diaper itself and the insert are reusable. The examiner notes that Dupuy states that one having ordinary skill in the art would understand that a reusable diaper is washable and Dupuy also states in the background section (para. 0004) that cloth diapers (reusable) are washed at home or through a laundry service) comprising an absorbent assembly (figure 1-5, notably figure)), the absorbent undergarment having an extension in the longitudinal direction (figure 1) and in the transversal direction (Fig. 1), the absorbent assembly comprising a wearer facing top layer (inner panel (24)) of a knitted material (para. 0020), a moisture barrier (impermeable outer panel (26) per abstract, para. 0010)) and at least one absorbent layer (absorbent pad (34))) located between the top layer and the moisture barrier (see figure 3, para. 0019).
The examiner notes however that Dupuy fails to discloses that the top layer comprises openings therein and the top layer has an open area of 25-95%.
Kreuzer teaches an absorbent article and is thus considered analogous to the claimed invention. Kreuzer teaches that the article comprises (topsheet (24)), an optional wicking layer (acquisition layer (52)), beneath said top layer (fig. 3), a moisture barrier (impermeable backsheet 25) and at least one absorbent layer (absorbent core (28)) located between the top layer and the moisture barrier (see fig. 3). Per paragraph 0046 the apertures ease penetration of exudates through the top layer (wearing facing layer), where the top layer may be any known topsheet. Therefore, as a means to ease penetration of exudates from the user into the absorbent core of the diaper, it would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to provide the aperture ratio (open area) of Kreuzer on the topsheet of Dupuy. Doing so would merely involve combining prior art elements according to known methods to yield predictable results, that being flowing exudate into an absorbent region of a diaper, and thus a prima facie case of obviousness exists. Should applicant argue that Kreuzer is directed to a disposable article and thus is improperly combined, the examiner notes that Kreuzer specifically states that any suitable topsheet may be used, and the aperture function of better allowing exudate to flow into the absorbent is not specific to only disposable articles. Thus, providing the apertures on the device of Dupuy (comprising a suitable top sheet) totaling an open area of 10-45%, would perform the same function of allowing for better penetration of exudates. Further the examiner notes that as the ratio of apertures to topsheet surface is in the range of in the range of 10-45%, the open area (area of apertures) overlaps the claimed range of 25-95% and thus a prima facie case of obviousness exists.
Per the amendments filed 07/31/2026, the claims now require that the openings are knitted openings, such that the top layer is knitted to have an open area of 25-95%.
The examiner notes that while the combination with Kreuzer teaches a suitable open area (through apertures) for a topsheet to ease exudate flow, it is not specifically disclosed that the apertures of the combined art are formed via a knitting process.
Park teaches an absorbent article and is thus considered analogous to the claimed invention. Park teaches that an absorbent article comprising a bodyside liner made from a wide variety of materials including foams, plastic films, and web materials including fibers (para. 0056-0057). Park later teaches that webs in the device may include a plurality of apertures for providing an open area (para. 0088). Park teaches that the slits (forming holes) may be made by any well-known method of forming an aperture in a web (para. 0081), and further teaches that in an embodiment, (figure 9) the apertures are “close knit parallel patterned apertures 271”. Therefore, as Park teaches that an open area may be formed in an absorbent article through apertures, where said apertures may be made from various known techniques, where one technique creates close knit parallel patterned apertures, it would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to create the apertures of Dupuy, Kreuzer, and Park through a knitting technique, as taught by Park. Doing so would merely require the simple substitution of one known element (creating apertures in a layer through mechanical puncturing) for another (knitting apertures) to obtain predictable results (that being the creation of apertures in a layer to ease the passage of exudate, and thus, a prima facie case of obviousness exists.
Regarding claim 2, Dupuy, Kreuzer, and Park teach the undergarment according to claim 1, wherein the top layer has an open area of 30-80%. As detailed under the rejection of claim 1, the open area as taught by Kreuzer and obviously combined with Dupuy ranges from 10-45%. As such the prior art range overlaps the claimed range and thus reads to the claimed limitation. The examiner notes that per the rejection of claim 1 the top “knitted to have” is read to by the prior art in view of Park.
Regarding claim 3, Dupuy, Kreuzer, and Park teach the undergarment according to claim 1, wherein the top layer has an open area of 30-60%. As detailed under the rejection of claim 1, the open area as taught by Kreuzer and obviously combined with Dupuy ranges from 10-45%. As such the prior art range overlaps the claimed range and thus reads to the claimed limitation. The examiner notes that per the rejection of claim 1 the top “knitted to have” is read to by the prior art in view of Park.
Regarding claim 10, Dupuy, Kreuzer, and Park teach the undergarment according claim 1,wherein the top layer is a single layer. As seen in figure 5 of Dupuy the topsheet comprises a single layer.
Regarding claim 13, Dupuy, Kreuzer, and Park teach the undergarment according to claim 1, wherein the top layer is not a spacer fabric. The examiner notes that as detailed under the rejection of claim 1, the top layer of Dupuy is the inner panel interfacing with the body and is thus not a spacer fabric.
Regarding claim 16, Dupuy discloses a washable and reusable absorbent assembly (Fig.1-5 where paragraph 0010 discloses that both the diaper itself and the insert are reusable. The examiner notes that Dupuy states that one having ordinary skill in the art would understand that a reusable diaper is washable and Dupuy also states in the background section (para. 0004) that cloth diapers (reusable) are washed at home or through a laundry service) having an extension in the longitudinal direction and in the transversal direction ((fig. 1), the absorbent assembly (10) comprising a wearer facing top layer ((inner panel (24)) of a knitted material (para. 0020), a moisture barrier (impermeable outer panel (26) per abstract, para. 0010))) (absorbent pad (34))) located between the top layer and the moisture barrier (see figure 3, para. 0019).
The examiner notes that Dupuy discloses that the outer layer may comprise a laminate (38) of polyester knit material lining the outer panel (para. 0021, figure 5) , where the polyester knit used in the device may be a synthetic fleece that rapidly wicks wetness away from the wearer (para. 0020). As such said lining (38), separate from the outer panel, is interpreted as an optional wicking layer where figure 5 shows that said layer is beneath said top layer (24)
The examiner notes however that Dupuy fails to discloses that the top layer comprises openings therein and the top layer has an open area of 25-95%.
Kreuzer teaches an absorbent article and is thus considered analogous to the claimed invention. Kreuzer teaches that the article comprises (topsheet (24)), an optional wicking layer (acquisition layer (52)), beneath said top layer (fig. 3), a moisture barrier (impermeable backsheet 25) and at least one absorbent layer (absorbent core (28)) located between the top layer and the moisture barrier (see fig. 3). Kreuzer further teaches wherein the top layer comprises openings (para. 0045,0046) therein and the top layer has an open area of 25-95% (para. 0046). Per para. 0046, the ratio of apertures to topsheet ((the surface of all the apertures divided by the overall surface of the topsheet) is in the range of 10-45%. Per paragraph 0046 the apertures ease penetration of exudates through the top layer (wearing facing layer), where the top layer may be any known topsheet. Therefore, as a means to ease penetration of exudates from the user into the absorbent core of the diaper, it would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to provide the aperture ratio (open area) of Kreuzer on the topsheet of Dupuy. Doing so would merely involve combining prior art elements according to known methods to yield predictable results, that being flowing exudate into an absorbent region of a diaper, and thus a prima facie case of obviousness exists. Should applicant argue that Kreuzer is directed to a disposable article and thus is improperly combined, the examiner notes that Kreuzer specifically states that any suitable topsheet may be used, and the aperture function of better allowing exudate to flow into the absorbent is not specific to only disposable articles. Thus, providing the apertures on the device of Dupuy (comprising a suitable top sheet) totaling an open area of 10-45%, would perform the same function of allowing for better penetration of exudates. Further the examiner notes that as the ratio of apertures to topsheet surface is in the range of in the range of 10-45%, the open area (area of apertures) overlaps the claimed range of 25-95% and thus a prima facie case of obviousness exists.
Per the amendments filed 07/31/2026, the claims now require that the openings are knitted openings, such that the top layer is knitted to have an open area of 25-95%.
The examiner notes that while the combination with Kreuzer teaches a suitable open area (through apertures) for a topsheet to ease exudate flow, it is not specifically disclosed that the apertures of the combined art are formed via a knitting process.
Park teaches an absorbent article and is thus considered analogous to the claimed invention. Park teaches that an absorbent article comprising a bodyside liner made from a wide variety of materials including foams, plastic films, and web materials including fibers (para. 0056-0057). Park later teaches that webs in the device may include a plurality of apertures for providing an open area (para. 0088). Park teaches that the slits (forming holes) may be made by any well-known method of forming an aperture in a web (para. 0081), and further teaches that in an embodiment, (figure 9) the apertures are “close knit parallel patterned apertures 271”. Therefore, as Park teaches that an open area may be formed in an absorbent article through apertures, where said apertures may be made from various known techniques, where one technique creates close knit parallel patterned apertures, it would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to create the apertures of Dupuy, Kreuzer, and Park through a knitting technique, as taught by Park. Doing so would merely require the simple substitution of one known element (creating apertures in a layer through mechanical puncturing) for another (knitting apertures) to obtain predictable results (that being the creation of apertures in a layer to ease the passage of exudate, and thus, a prima facie case of obviousness exists.
Regarding claim 17, Dupuy, Kreuzer, and Park teach the undergarment according to claim 1, wherein the absorbent layer is configured to absorb liquid and release liquid during laundering. The examiner notes that Dupuy teaches that both the diaper (panels) as a whole and the absorbent insert are washable. As such the prior art reads to the claimed limitation. Should applicant disagree, per the MPEP section 2114 section II “"[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim.” Therefore, as Dupuy teaches a washable absorbent article comprising an absorbent layer configured to be laundered, and the absorbing of liquid and releasing liquid during laundering is functional language, the prior art reads to the claimed limitation.
Claim(s) 4,5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dupuy in view of Kreuzer and Park and further in view of Kim Young KR 20210044351, hereafter Kim Young.
Regarding claim 4, Dupuy, Kreuzer, and Park teach the undergarment according to claim 1, where the top layer may be a knit, but fails to specifically teach wherein the top layer is selected from a warp knit, weft knit, jaquard knit, raschel knit and powernet.
Kim Young teaches an absorbent article and is thus considered analogous to the claimed invention. Kim Young teaches a ventilation layer (104) in contact with the human body (para. 0034). As such said layer is interpreted as the top sheet. Per paragraph 0034 said layer is preferably made from a powernet fabric. See also para. 0042. Therefore, as Dupuy, Kreuzer, and Park teach that a knitted material is used, and Kim Young teaches that topsheets for absorbent articles may be made from powernet, a type of knit, it would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to use a powernet fabric as the body facing layer of the prior art combination. Said combination would merely involve the simple substitution of one known element (knit body facing layer material) for another (body facing powernet (type of knit) material) to obtain predictable results (passage of fluid through to an absorbent core) and thus a prima facie case of obviousness exists.
Regarding claim 5, Dupuy, Kreuzer, and Park teach the undergarment according to claim 1, where the top layer may be a knit, but fails to specifically teach wherein the top layer is a powernet.
Kim Young teaches an absorbent article and is thus considered analogous to the claimed invention. Kim Young teaches a ventilation layer (104) in contact with the human body (para. 0034). As such said layer is interpreted as the top sheet. Per paragraph 0034 said layer is preferably made from a powernet fabric. See also para. 0042. Therefore, as Dupuy, Kreuzer, and Park teach that a knitted material is used, and Kim Young teaches that topsheets for absorbent articles may be made from powernet, a type of knit, it would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to use a powernet fabric as the body facing layer of the prior art combination. Said combination would merely involve the simple substitution of one known element (knit body facing layer material) for another (body facing powernet (type of knit) material) to obtain predictable results (passage of fluid through to an absorbent core) and thus a prima facie case of obviousness exists.
Claim(s) 6,8-9,14-15, is/are rejected under 35 U.S.C. 103 as being unpatentable over Dupuy in view of Kreuzer and Park, and further in view of Kim et al. US 2015/0099086, hereafter Kim.
Regarding claim 6, Dupuy, Kreuzer, and Park teach the undergarment according to claim 1, but fails to specifically teach wherein the openings are non-circular.
Kim teaches an absorbent article and is thus considered analogous to the claimed invention. Kim teaches that the outer cover of the article (para. 0025, including a diaper) comprises a plurality of apertures (para. 0039). Per para. 0039, the apertures may be any suitable shape, including circular, elliptical, square, or triangular. The examiner notes that squares and triangles are non-circular. Therefore, it would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to use a non-circular aperture on the outer cover of Dupuy, Kreuzer, and Park, as Kim teaches that non-circular apertures are suitable replacements for circular apertures. Doing so would merely involve some teaching, suggestion, or motivation in the prior art (non circular openings in a topsheet are known to be suitable in the art) that would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings to arrive at the claimed invention (that being making the apertures of Dupuy, Kreuzer, and Park non-circular) and thus a prima facie case of obviousness exists. The examiner notes that per the rejection of claim 1 the top “knitted to have” is read to by the prior art in view of Park.
Regarding claim 8, Dupuy, Kreuzer, and Park teach the undergarment according to claim 1,but fails to specifically teach wherein the openings are arranged in transversal rows.
Kim teaches an absorbent article and is thus considered analogous to the claimed invention. Kim teaches that the outer cover of the article (para. 0025, including a diaper) comprises a plurality of apertures (para. 0039). Per para. 0039, the apertures may be any suitable shape, including circular, elliptical, square, or triangular. Kim further teaches that the outer cover of the article (para. 0025, including a diaper) comprises a plurality of apertures (para. 0039). Per para. 0043, the apertures are arranged in both columns and rows. Therefore, it would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to align the apertures on the outer cover of Dupuy, Kreuzer, and Park in rows, as Kim teaches that apertures of absorbent article topsheet may be aligned in both columns and rows. Doing so would merely involve some teaching, suggestion, or motivation in the prior art (apertures in a topsheet are suitably arranged in rows and columns) that would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings to arrive at the claimed invention (that being aligning the apertures of Dupuy, Kreuzer, and Park into columns and rows) and thus a prima facie case of obviousness exists. The examiner notes that per the rejection of claim 1 the top “knitted to have” is read to by the prior art in view of Park.
Regarding claim 9, Dupuy, Kreuzer, and Park teach the undergarment according to claim 1, but fails to teach wherein the openings are arranged in rows and adjacent rows are offset in relation to each other.
Kim teaches an absorbent article and is thus considered analogous to the claimed invention. Kim teaches that the outer cover of the article (para. 0025, including a diaper) comprises a plurality of apertures (para. 0039). Per para. 0043, the apertures are arranged in both columns and rows. Per the same citation (0043), Kim teaches that the spaces between adjacent apertures may be any suitable spacing, including random. The examiner notes that random spacing between rows and columns of apertures would offset both the rows and columns. Therefore, it would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to use random spacing between apertures in rows and columns on the outer cover of Dupuy, Kreuzer, and Park in rows, as Kim teaches that apertures of absorbent article topsheet may be comprises randomly spaced apertures in rows. Doing so would merely involve some teaching, suggestion, or motivation in the prior art (apertures in the topsheets are known in the art to be provided in non-aligned rows) that would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings to arrive at the claimed invention (that being providing the apertures of Dupuy, Kreuzer, and Park in nonaligned rows) and thus a prima facie case of obviousness exists. The examiner notes that per the rejection of claim 1 the top “knitted to have” is read to by the prior art in view of Park.
Regarding claim 14, Dupuy, Kreuzer, and Park teach the undergarment according to claim 1,wherein the openings have an area ranging dimensions from 1 to 20mm2 (para. 0046 of Kreuzer). However, the prior arts fail to disclose a specific shape of the openings and as such fails to specifically teach the openings have dimensions within the range of 0.5-4 mm.
Kim teaches an absorbent article and is thus considered analogous to the claimed invention. Kim teaches that the outer cover of the article (para. 0025, including a diaper) comprises a plurality of apertures (para. 0039). Per para. 0039, the apertures may be any suitable shape, including circular, elliptical, square, or triangular. Therefore, it would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to use a circle as the shape of the aperture on the outer cover of Dupuy, Kreuzer, and Park, as Kim teaches that circle shaped apertures are suitable shapes for apertures in an absorbent article. Doing so would merely involve some teaching, suggestion, or motivation in the prior art (circle shaped openings in a topsheet are known to be suitable in the art) that would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings to arrive at the claimed invention (that being making the apertures of Dupuy, Kreuzer, and Park circle-shaped) and thus a prima facie case of obviousness exists.
The examiner notes that with as detailed under the same rejection, Kreuzer teaches that the openings have an area ranging dimensions from 1 to 20mm2 (para. 0046 of Kreuzer). Thus 1mm 2 is a suitable area for the apertures. To achieve an area of 1mm squared, the dimensions must be within the claimed range (for circle 1=πr2, where a simple calculation leads to .3183=r2 and further .56mm=r). Therefore, as seen by the calculations, the apertures previously found obvious to combine with Dupuy would have dimensions ranging within .5-4mm in view of Kim and Kreuzer. The examiner notes that per the rejection of claim 1 the top “knitted to have” is read to by the prior art in view of Park.
Regarding claim 15, Dupuy, Kreuzer, and Park teach the undergarment according to claim 1, but fails to teach wherein the distance between the openings is 0.5-4 mm.
Kim teaches an absorbent article and is thus considered analogous to the claimed invention. Kim teaches that the outer cover of the article (para. 0025, including a diaper) comprises a plurality of apertures (para. 0039). Per para. 0039, the apertures may be any suitable shape, including circular, elliptical, square, or triangular. Per para. 0043, the apertures are arranged in both columns and rows, where “each of the apertures is spaced apart from the adjacent apertures (as measured from an edge of one aperture to the closest edge of an adjacent aperture) by a distance 122 (FIG. 6) between about 0.5 mm and about 6 mm”. Therefore, it would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to space apart the apertures on the outer cover of Dupuy, Kreuzer, and Park by a distance of about .5-6mm, as Kim teaches that apertures of absorbent article topsheet may be suitably spaced apart by such a distance. Doing so would merely involve some teaching, suggestion, or motivation in the prior art (apertures in a topsheet are suitably spaced apart by .5-6mm) that would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings to arrive at the claimed invention (that being spacing the apertures of Dupuy, Kreuzer, and Park by .5-6mm) and thus a prima facie case of obviousness exists. The examiner notes that the range of the prior art combination (.5-6) overlaps with the claimed range (.5-4) and thus the prior art reads to the claimed limitation. The examiner notes that per the rejection of claim 1 the top “knitted to have” is read to by the prior art in view of Park.
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dupuy in view of Kreuzer and Park, and further in view of Beck et al. US 2008/0110775, hereafter Beck.
Regarding claim 7, Dupuy, Kreuzer, and Park teach the undergarment according to claim 1, but fails to teach wherein the openings are elongated and has have a ratio of length to width of >1.
Beck teaches an absorbent article and is thus considered analogous to the claimed invention. Beck teaches that topsheet apertures are known to have a generally rectangular or generally circular shape, where the ratio of smallest dimension to greatest dimension of from 1:1 to approximately 1:100, including all intermediate ratios (para. 0220). Therefore, it would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to use an aperture on the outer cover of Dupuy, Kreuzer, and Park with a length to width ration of >1, as Beck teaches that ratios of dimension for suitable topsheet apertures may include any ratio from 1:1 to 1:100. Doing so would merely involve some teaching, suggestion, or motivation in the prior art (apertures in a topsheet may suitably have a length to width ratio of greater than 1) that would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings to arrive at the claimed invention (that being sizing the apertures of Dupuy, Kreuzer, and Park to have a length to width ratio greater than 1) and thus a prima facie case of obviousness exists. The examiner notes that per the rejection of claim 1 the top “knitted to have” is read to by the prior art in view of Park.
Claim(s) 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dupuy in view of Kreuzer and Park and further in view of Park et al. US 2018/0064585, hereafter Park585.
Regarding claim 11, Dupuy, Kreuzer, and Park teach the undergarment according to claim 1, but fails to teach wherein the top layer has a basis weight of 80-200 gsm.
Park585 teaches an absorbent article and is thus considered analogous to the claimed invention. Park585 teaches that the article used comprises a topsheet with a variable basis weight (para. 0102). Per the same citation, the range of suitable basis weights includes 5-150gsm. Therefore, as Park585 teaches that suitable topsheet basis weights may range from 5-150gsm, it would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to use a material within the range of 5-150 that would be within the claimed range of 80-200gsm, for example 100gsm, as said ranges overlap. Doing so would merely involve simple substitution of one known element (material with a basis weight) for another (material with a higher basis weight, between 80 and 150gsm) to obtain predictable results (topsheet functionality), and as such a prima facie case of obviousness exists.
Claim(s) 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dupuy in view of Kreuzer and Park and further in view of Oprita et al. US 2011/0213327, hereafter Oprita.
Regarding claim 12, Dupuy, Kreuzer, and Park teach the undergarment according to claim 1, but fails to specifically disclose wherein the absorbent assembly comprises two absorbent layers.
Oprita teaches an absorbent article and is thus considered analogous to the claimed invention. Oprita teaches that a diaper comprises an absorbent (Abstract) where said diaper is reusable and said absorbent is a reusable absorbent insert (para. 0009). An example of the absorbent is seen in figure 3. Per paragraph 0041, the absorbent insert may comprise one or more additional absorbent layers configured to absorb fluid. Therefore, as Oprita teaches that reusable absorbent inserts may comprise multiple layers (such as 2 layers, 3 layers, etc.) it would have been obvious to one having ordinary skill in the art to provide a second layer of absorbent with the absorbent layer of Dupuy. Doing so would merely involve combining prior art elements according to known methods to yield predictable results (that being formation of an absorbent component of a diaper), and thus a prima facie case of obvious exists.
Claim(s) 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dupuy in view of Kreuzer and Park, and further in view of Schafer et al. US 2009/0270826, hereafter Schafer.
Regarding claim 18, Dupuy, Kreuzer, and Park teach the undergarment according to claim 1, wherein the top layer is knitted to have an open area of 10-45%, but not an open area of 60-95%. Kreuzer teaches (para. 0046) the surface to aperture ratio provides passageways to runny and liquid excrement into the empty volume. As such the aperture ratio is understood to be a result effective variable in that changing the amount of apertures on the surface impacts the passage of material through the topsheet. Further, it appears that one of ordinary skill in the art would have had a reasonable expectation of success in modifying the prior art combination device to have an open area (aperture ratio) within the claimed range, as it involves only adjusting the dimension of a component disclosed to require adjustment. Further the claim range appears to be non-critical as page 2, lines 1-13 of the instant spec detail a larger suitable range of 25-95% thus indicating that values less than the claimed 60-95% still serve the same purpose. Therefore, it would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to modify the device of Dupuy, Kreuzer, and Park by making the aperture ratio (and thus open area) 60-95% 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).
Should applicant argue that the claimed range is critical to a specific function, the examiner incorporates Schafer. Schafer teaches an absorbent garment and is thus considered analogous to the claimed invention. Schafer teaches that a topsheet may be apertured, where the open area (sum of all apertures) may be about 10%-100% (para. 0026-0027). Therefore, as Schafer teaches that values ranging from 10-100% open area may be suitable for topsheets in absorbent articles, it would have been obvious to one having ordinary skill in the art to provide the device of Dupuy, Kreuzer, and Park with an open area within the claimed range (60-95%) as it is taught in the art that open areas within said range are suitable for topsheets in absorbent articles.
Conclusion
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/MATTHEW WRUBLESKI/Examiner, Art Unit 3781
/ARIANA ZIMBOUSKI/Primary Examiner, Art Unit 3781
