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 .
Response to Arguments
Applicant’s arguments, see remarks, filed 03/09/2026, with respect to the rejection(s) of claim(s) 1-17 under 35 U.S.C 103 have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Dupuy US 2002/0010452 in view of Kreuzer.
The examiner notes that the filing of the terminal disclaimer overcomes the double patenting rejection, and as such, said rejection is withdrawn.
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) 1-3,10,13,16-17 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.
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 layout 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), 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.
Regarding claim 2, Dupuy and Kreuzer 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.
Regarding claim 3, Dupuy and Kreuzer 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.
Regarding claim 10, Dupuy and Kreuzer 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 and Kreuzer 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 layout 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), 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.
Regarding claim 17, Dupuy and Kreuzer 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 in and further in view of Kim Young KR 20210044351, hereafter Kim Young.
Regarding claim 4, Dupuy and Kreuzer 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 and Kreuzer 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 and Kreuzer 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 and Kreuzer 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 further in view of Kim et al. US 2015/0099086, hereafter Kim.
Regarding claim 6, Dupuy and Kreuzer 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 and Kreuzer, 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 and Kreuzer non-circular) and thus a prima facie case of obviousness exists.
Regarding claim 8, Dupuy and Kreuzer 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 and Kreuzer 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 and Kreuzer into columns and rows) and thus a prima facie case of obviousness exists.
Regarding claim 9, Dupuy and Kreuzer 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 and Kreuzer 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 and Kreuzer in nonaligned rows) and thus a prima facie case of obviousness exists.
Regarding claim 14, Dupuy and Kreuzer 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 and Kreuzer, 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 and Kreuzer 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.
Regarding claim 15, Dupuy and Kreuzer 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 and Kreuzer 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 and Kreuzer 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.
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dupuy in view of Kreuzer and further in view of Beck et al. US 2008/0110775, hereafter Beck.
Regarding claim 7, Dupuy and Kreuzer 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 and Kreuzer 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 and Kreuzer to have a length to width ratio greater than 1) and thus a prima facie case of obviousness exists.
Claim(s) 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dupuy in view of Kreuzer and further in view of Park et al. US 2018/0064585, hereafter Park.
Regarding claim 11, Dupuy and Kreuzer teach the undergarment according to claim 1, but fails to teach wherein the top layer has a basis weight of 80-200 gsm.
Park teaches an absorbent article and is thus considered analogous to the claimed invention. Park 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 Park 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 further in view of Oprita et al. US 2011/0213327, hereafter Oprita.
Regarding claim 12, Dupuy and Kreuzer 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 comprise 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.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US 20170079851, disclosing offset apertures in an absorbent article and US 2015/0257944 disclosing a reusable absorbent article.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Matthew Wrubleski whose telephone number is (571)272-1150. The examiner can normally be reached M-F 8:00-4:00 EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Rebecca Eisenberg can be reached at 571-270-5879. 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.
/MATTHEW WRUBLESKI/Examiner, Art Unit 3781
/ARIANA ZIMBOUSKI/Primary Examiner, Art Unit 3781
Prosecution Insights