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 .
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.
Claim(s) 1-3, 7, 10-11, 15-16, 18, 20, 23-24, 27, and 30-33 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mellos (2023/0082418) in view of Kreuzer (10,888,469).
With respect to claim 1, Mellos discloses a washable and reusable absorbent undergarment, as shown in figure 2a, the undergarment having an extension in the longitudinal direction and the transverse direction. The undergarment has an absorbent assembly 18, as shown in figure 7, comprising a wearer facing top layer 34, a moisture barrier 38, least one absorbent layer 36, and an additional layer that is considered to anticipate a wicking layer beneath the top layer, as disclosed in paragraph [0078]. The top layer 34 has openings 40 that span 1-5 stitches, as shown in figure 9c.
Mellos discloses all aspects of the claimed invention with the exception of 5-60 openings/cm2. Kreuzer teaches providing the top layer of an absorbent article with 20 openings/cm2, as disclosed in column 9, lines 10-22, to provide enough passageways for the flow of excrement with minimizing potential rewet. It would therefore have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to provide the top layer of Mellos with 20 openings/cm2, as taught by Kreuzer, to provide enough passageways for the flow of excrement with minimizing potential rewet.
With respect to claim 2, modified Mellos discloses all aspects of the claimed invention with the exception of the openings having a dimension within the range of 0.3-2.0 mm. Kreuzer teaches providing the top layer of an absorbent article with openings having a dimension in the range of 0.3-2.0 mm, as disclosed in column 9, lines 9-22, to provide enough passageways for the flow of excrement with minimizing potential rewet. It would therefore have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to provide the openings of Mellos with a dimension in the range of 0.3-2.0 mm, as taught by Kreuzer, to provide enough passageways for the flow of excrement with minimizing potential rewet.
With respect to claim 3, modified Mellos discloses all aspects of the claimed invention with the exception of the openings having a dimension within the range of 0.5-1.5 mm. Kreuzer teaches providing the top layer of an absorbent article with openings having a dimension in the range of 0.5-1.5 mm, as disclosed in column 9, lines 9-22, to provide enough passageways for the flow of excrement with minimizing potential rewet. It would therefore have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to provide the openings of Mellos with a dimension in the range of 0.5-1.5 mm, as taught by Kreuzer, to provide enough passageways for the flow of excrement with minimizing potential rewet.
With respect to claim 7, the top layer 34 of Mellos has 2-10 wales and 2-10 courses between openings 40, as shown in figure 9c and disclosed in paragraph [0073].
With respect to claim 10, modified Mellos discloses all aspects of the claimed invention with the exception of the wicking layer being a jersey knit. Jersey is a commonly known knitting technique that is known to be used in absorbent undergarments. It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to make the wicking layer of Mellos from a jersey knit to achieve the predictable result of applying a known technique to a known product.
With respect to claim 11, Mellos teaches providing additional absorbent layers to increase absorbency, as disclosed in paragraph [0069]. It would therefore have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to provide the absorbent assembly of Mellos with two absorbent layers in addition to a wicking layer to achieve the predictable result of increasing absorbency.
With respect to claim 15, the top layer 34 of Mellos is not a spacer fabric, as shown in figure 7.
With respect to claim 16, the openings 40 of Mellos are through holes, as shown in figure 9c.
With respect to claim 18, Mellos discloses all aspects of the claimed invention with the exception of 15-40 openings/cm2. Kreuzer teaches providing the top layer of an absorbent article with 20 openings/cm2, as disclosed in column 9, lines 10-22, to provide enough passageways for the flow of excrement with minimizing potential rewet. It would therefore have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to provide the top layer of Mellos with 20 openings/cm2, as taught by Kreuzer, to provide enough passageways for the flow of excrement with minimizing potential rewet.
With respect to claim 20, the openings 40 of Mellos span about 1-5 stitches, as shown in figure 9c.
With respect to claim 23, the openings 40 of Mellos are arranged in transversal rows, as shown in figure 9c.
With respect to claim 24, the openings 40 of Mellos in adjacent rows are offset in relation to each other, as shown in figure 9c.
With respect to claim 27, the openings 40 of Mellos are elongated, as shown in figure 9c. Mellos remails silent as to a ratio of length to width of greater than 1.5, but shows in figure 9c openings that have a length of about 4 stitches and a width of only 1 stitch. It would therefore have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to make the ratio of length to width of the openings of Mellos greater than 1.5 since Mellos reasonably teaches such a ratio and to achieve the predictable result of openings of sufficient size to allow blood to pass through (see Mellos, paragraph [0072]).
With respect to claim 30, modified Mellos discloses all aspects of the claimed invention with the exception of the top layer being a Jacquard technique. Jacquard is a commonly known knitting technique that is known to be used in absorbent undergarments. It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to make the top layer of Mellos from a Jacquard technique to achieve the predictable result of applying a known technique to a known product.
With respect to claim 31, the top layer of Mellos is a single knit fabric, as disclosed in paragraph [0073].
With respect to claim 32, the openings 40 of Mellos are tuck stitches, as disclosed in paragraph [0073].
With respect to claim 33, Mellos discloses a washable and reusable absorbent assembly 18, as shown in figure 6, the assembly having an extension in the longitudinal direction and the transverse direction. The absorbent assembly 18, as shown in figure 7, comprises a wearer facing top layer 34, a moisture barrier 38, least one absorbent layer 36, and an additional layer that is considered to anticipate a wicking layer beneath the top layer, as disclosed in paragraph [0078]. The top layer 34 has openings 40 that span 1-5 stitches, as shown in figure 9c.
Mellos discloses all aspects of the claimed invention with the exception of 5-60 openings/cm2. Kreuzer teaches providing the top layer of an absorbent article with 20 openings/cm2, as disclosed in column 9, lines 10-22, to provide enough passageways for the flow of excrement with minimizing potential rewet. It would therefore have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to provide the top layer of Mellos with 20 openings/cm2, as taught by Kreuzer, to provide enough passageways for the flow of excrement with minimizing potential rewet.
Claim(s) 5, 8, and 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mellos (2023/0082418) in view of Kreuzer (10,888,469), and further in view of Chong et al. (2024/0207107).
With respect to claim 5, modified Mellos discloses all aspects of the claimed invention with the exception of the top layer having a basis weight of 80-200 gsm. Chong teaches a suitable basis weight for the top layer of an absorbent undergarment is 180 gsm, as disclosed in paragraph [0060]. It would therefore have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to provide the top layer of Mellos with a basis weight of 180 gsm, as taught by Chong, to achieve the predictable result of a material having a suitable weight for an absorbent undergarment.
With respect to claim 8, modified Mellos discloses all aspects of the claimed invention with the exception of the wicking layer having a basis weight of 180-250 gsm. Chong teaches a suitable basis weight for the wicking layer of an absorbent undergarment is 180 gsm, as disclosed in paragraph [0060]. It would therefore have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to provide the wicking layer of Mellos with a basis weight of 180 gsm, as taught by Chong, to achieve the predictable result of a material having a suitable weight for an absorbent undergarment.
With respect to claim 12, modified Mellos discloses all aspects of the claimed invention with the exception of the top layer having a basis weight of 200-350 gsm. Chong teaches a suitable basis weight for the absorbent layer of an absorbent undergarment is 235 gsm, as disclosed in paragraph [0061]. It would therefore have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to provide the absorbent layer of Mellos with a basis weight of 235 gsm, as taught by Chong, to achieve the predictable result of a material having a suitable weight for an absorbent undergarment.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-3, 5, 11, 23-24, 27, and 33 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 7-9, 11-12, 14, and 16 of copending Application No. 18/683,966 (reference application) in view of Kreuzer (10,888,469). Although the claims at issue are not identical, they are not patentably distinct from each other because the present claims disclose all aspects of the copending claims with the exception of the top layer has an open area of 25-95%. Kreuzer teaches providing the top layer of an absorbent article with an open area of 25-40%, as disclosed in column 9, lines 10-22, to provide enough passageways for the flow of excrement with minimizing potential rewet. It would therefore have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to provide the top layer of Mellos with an open area of 25-40%, as taught by Kreuzer, to provide enough passageways for the flow of excrement with minimizing potential rewet.
Present Claims
Copending Claims
1
1
2
14
3
14
5
11
11
12
23
8
24
9
27
7
33
16
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. U.S. Patents and Publications 12,239,511; 10,555,841; 10,231,885; and 2002/0198508 disclose absorbent undergarments.
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/CATHARINE L ANDERSON/Primary Examiner, Art Unit 3781
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