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 § 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.
Claim 24 is 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 24 depends from claim 23 which is cancelled. For the purposes of compact prosecution, claim 24 will be interpreted as depending from claim 1.
Claim 24 recites the limitation "the wicking layer" in ln. 2. There is insufficient antecedent basis for this limitation in the claim.
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.
Claim 1 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of copending Application No. 18/683,984 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because claim 1 of copending Application No. 18/683,984 fails to disclose wherein each opening spans 2-10 stitches. However, claim 1 of copending Application No. 18683,984 discloses wherein each opening spans 1-10 stitches, which encompasses the claimed range of 2-10 stitches.
“[W]hen, as by a recitation of ranges or otherwise, a claim covers several compositions, the claim is ‘anticipated’ if one of them is in the prior art." Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (see MPEP §2131.03.I).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim 2 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 2 of copending Application No. 18/683,984 (reference application).
Claim 5 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 18 of copending Application No. 18/683,984 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because claim 5 of copending Application No. 18/683,984 fails to disclose wherein the top layer has 15-25 openings/cm2. However, claim 18 of copending Application No. 18683,984 discloses wherein the top layer has 15-40 openings/cm2, which encompasses the claimed range of 15-25 openings/cm2.
“[W]hen, as by a recitation of ranges or otherwise, a claim covers several compositions, the claim is ‘anticipated’ if one of them is in the prior art." Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (see MPEP §2131.03.I).
Claim 7 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 20 of copending Application No. 18683,984 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because claim 20 of copending Application No. 18/683,984 fails to disclose wherein each opening spans 2-6 stitches. However, claim 1 of copending Application No. 18683,984 discloses wherein each opening spans 1-8 stitches, which encompasses the claimed range of 2-6 stitches.
“[W]hen, as by a recitation of ranges or otherwise, a claim covers several compositions, the claim is ‘anticipated’ if one of them is in the prior art." Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (see MPEP §2131.03.I).
Claim 9 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 23 of copending Application No. 18/683,984 (reference application).
Claim 10 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 24 of copending Application No. 18/683,984 (reference application).
Claim 11 provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of copending Application No. 18/683,984 in view of Mellos (Pub. No.: US 2023/0082418 A1). Claim 1 of copending Application No. 18/683,984 recites the subject matter of claim 11 except for wherein the openings are non-circular.
Mellos teaches (fig. 1-2, 6-7, 9a-9d) a washable and reusable absorbent undergarment (garment 10, ¶ 0001) and thus in the same field of endeavor, comprising an absorbent assembly (gusset 18), the absorbent assembly comprising a wearer facing top layer (top layer 34) of a knitted material (¶ 0071), characterized in that the top layer has openings (eyelet 40) therein (¶ 0073), wherein the openings are non-circular (fig. 9c) and are configured to allow fluid to pass through (¶ 0072).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the openings of claim 1 of copending Application No. 18/683,984 such that they are non-circular, as taught by Mellos, as such openings configure fluid to pass through (Mellos, ¶ 0072).
Claim 12 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 27 of copending Application No. 18/683,984 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because claim 27 of copending Application No. 18/683,984 fails to disclose wherein the openings are elongated and each has a ratio of length to width of >1. However, claim 27 of copending Application No. 18683,984 discloses wherein the openings are elongated and each has a ratio of length to width of >1.5, which encompasses the claimed range of >1.
“[W]hen, as by a recitation of ranges or otherwise, a claim covers several compositions, the claim is ‘anticipated’ if one of them is in the prior art." Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (see MPEP §2131.03.I).
Claim 13 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 27 of copending Application No. 18/683,984 (reference application).
Claim 15 provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of copending Application No. 18/683,984 in view of Miao et al. (Pub. No.: US 2015/0313766 A1). Claim 1 of copending Application No. 18/683,984 recites the subject matter of claim 15 except for wherein the openings have a bird’s eye shape.
Miao teaches (fig. 1-3) an absorbent assembly (feminine care absorbent article 100) and thus in the same field of endeavor, comprising a top layer (second topsheet layer 108), the top layer having openings (apertures 146), wherein the openings can be any suitable shape (¶ 0068) configured to acquire fluid (¶ 0068)..
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the shape of the openings of Claim 1 of copending Application No. 18/683,984 such that they have a shape configured to acquire fluid, as taught by Miao, such as a bird’s eye shape, in order to shape the openings to acquire fluid (Miao, ¶ 0068).
Changes in shape are a matter of design choice which a person of ordinary skill in the art would have found obvious (In re Dailey, 149 USPQ 47, see MPEP § 2144.04 IV. B.) as the applicant has not demonstrated the criticality of this limitation.
Claim 16 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 30 of copending Application No. 18/683,984 (reference application).
Claim 17 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 31 of copending Application No. 18/683,984 (reference application).
Claim 18 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 32 of copending Application No. 18/683,984 (reference application).
Claim 20 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 5 of copending Application No. 18/683,984 (reference application).
Claim 22 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 7 of copending Application No. 18/683,984 (reference application).
Claim 24 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 8 of copending Application No. 18/683,984 (reference application).
Claim 28 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 12 of copending Application No. 18/683,984 (reference application).
Claim 31 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 15 of copending Application No. 18/683,984 (reference application).
Claim 32 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 16 of copending Application No. 18/683,984 (reference application).
Claim 33 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 33 of copending Application No. 18683,984 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because claim 1 of copending Application No. 18/683,984 fails to disclose wherein each opening spans 2-10 stitches. However, claim 1 of copending Application No. 18683,984 discloses wherein each opening spans 1-10 stitches, which encompasses the claimed range of 2-10 stitches.
“[W]hen, as by a recitation of ranges or otherwise, a claim covers several compositions, the claim is ‘anticipated’ if one of them is in the prior art." Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (see MPEP §2131.03.I).
Claim Rejections - 35 USC § 103
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) 1-2, 5, 7, 9-13, 18, 22 and 31-33 are rejected under 35 U.S.C. 103 as being unpatentable over Mellos (Pub. No.: US 2023/0082418 A1) in view of Noel (Pub. No.: US 2015/0257943 A1).
Regarding claim 1, Mellos discloses (1-2, 6-7, 9a-9d) a washable and reusable absorbent undergarment (garment 10, ¶ 0001) comprising an absorbent assembly (gusset 18), the absorbent undergarment having an extension in the longitudinal direction and in the transverse direction (fig. 2), the absorbent assembly comprising a wearer facing top layer (top layer 34) of a knitted material (¶ 0071), a moisture barrier (bottom layer 38) and at least one absorbent layer (core layer 36) located between the top layer and the moisture barrier (fig. 7, ¶ 0067), characterized in that the top layer has openings (eyelet 40) therein (¶ 0073), and wherein each opening spans 3 stitches (¶ 0073) which falls within the claimed range of 2-10 stitches.
“[W]hen, as by a recitation of ranges or otherwise, a claim covers several compositions, the claim is ‘anticipated’ if one of them is in the prior art." Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (see MPEP §2131.03.I).
Mellos fails to disclose that there are 5-60 openings/cm2.
Noel teaches (fig. 1) an absorbent assembly (catamenial device 10) and thus in the same field of endeavor, comprising a wearer facing top layer (topsheet 14), characterized in that the top layer has openings (aperture 24) therein (¶ 0016).
While Noel fails to teach that there are 5-60 openings/cm2, Noel teaches that the open area of the openings and the percent open area can be optimized for a given fluid to be absorbed into an underlying layer (¶ 0028). Thus, Noel teaches that the openings per area is a result affective variable and discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233 (See MPEP §2144.05). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to optimize the number of openings per area such that there 5-60 openings/cm2 in order tailor the top layer for a given fluid (Noel, ¶ 0028).
Absent any showing of critical or unexpected results, such limitations appear to be routine optimization within the skill of the ordinary artisan before the effective filing date of the invention are therefore prima facie obvious.
Regarding claim 2¸ Mellos in view of Noel fail to disclose wherein the openings each have a dimension within the range of 0.3-2.0 mm.
However, Noel teaches that the open area of the openings and the percent open area can be optimized for a given fluid to be absorbed into an underlying layer (¶ 0028). Thus, Noel teaches that the dimension of the openings is a result affective variable and discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233 (See MPEP §2144.05). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to optimize the dimension of the openings of Mellos in view of Noel such that it is within the range of 0.3-2.0 mm order tailor the top layer for a given fluid (Noel, ¶ 0028).
Regarding claim 5, Mellos in view of Noel fail to disclose that there are 15-25 openings/cm2.
However, Noel teaches that the open area of the openings and the percent open area can be optimized for a given fluid to be absorbed into an underlying layer (¶ 0028). Thus, Noel teaches that the openings per area is a result affective variable and discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233 (See MPEP §2144.05). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to optimize the number of openings per area such that there 15-25 openings/cm2 are in order tailor the top layer for a given fluid (Noel, ¶ 0028).
Absent any showing of critical or unexpected results, such limitations appear to be routine optimization within the skill of the ordinary artisan before the effective filing date of the invention are therefore prima facie obvious.
Regarding claim 7, Mellos discloses wherein the openings span 3 stitches (¶ 0073) which falls within the claimed range of 2-10 stitches.
“[W]hen, as by a recitation of ranges or otherwise, a claim covers several compositions, the claim is ‘anticipated’ if one of them is in the prior art." Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (see MPEP §2131.03.I).
Regarding claim 9, Mellos discloses wherein the openings are arranged in transversal rows (fig. 9c).
Regarding claim 10, Mellos discloses wherein the openings in adjacent rows are offset in relation to each other (fig. 9c).
Regarding claim 11, Mellos discloses wherein the openings are non-circular (fig. 9c).
Regarding claim 12, Mellos discloses wherein the openings are elongated (fig. 9c) and each has a ratio of length to width of 3 which falls within the claimed range of >1 (fig. 9c, ¶ 0073, each opening has a length of 3 courses and a width of 1 wale, thus the ratio of length to width is 3).
“[W]hen, as by a recitation of ranges or otherwise, a claim covers several compositions, the claim is ‘anticipated’ if one of them is in the prior art." Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (see MPEP §2131.03.I).
Regarding claim 13, Mellos discloses wherein the openings are elongated (fig. 9c) and each has a ratio of length to width of 3 which falls within the claimed range of >1.5 (fig. 9c, ¶ 0073, each opening has a length of 3 courses and a width of 1 wale, thus the ratio of length to width is 3).
“[W]hen, as by a recitation of ranges or otherwise, a claim covers several compositions, the claim is ‘anticipated’ if one of them is in the prior art." Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (see MPEP §2131.03.I).
Regarding claim 18, Mellos discloses wherein the openings are tuck stitches (¶ 0073).
Regarding claim 22, Mellos discloses wherein the top layer has 4 wales and 7 courses between openings (fig. 9c) which falls within the claimed range of 2-10 wales and 2-10 courses.
“[W]hen, as by a recitation of ranges or otherwise, a claim covers several compositions, the claim is ‘anticipated’ if one of them is in the prior art." Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (see MPEP §2131.03.I).
Regarding claim 31, Mellos discloses wherein the top layer is not a spacer fabric (¶ 0067).
Regarding claim 32, Mellos discloses wherein the openings are through holes (¶ 0073).
Regarding claim 33, Mellos discloses (1-2, 6-7, 9a-9d) a washable and reusable absorbent assembly (gusset 18, ¶ 0001), the absorbent undergarment having an extension in the longitudinal direction and in the transverse direction (fig. 6), comprising a wearer facing top layer (top layer 34) of a woven or knitted material (¶ 0071), a moisture barrier (bottom layer 38) and at least one absorbent layer (core layer 36) located between the top layer and the moisture barrier (fig. 7, ¶ 0067), characterized in that the top layer has openings (eyelet 40) therein (¶ 0073), and wherein each opening spans 3 stitches (¶ 0073) which falls within the claimed range of 2-10 stitches.
“[W]hen, as by a recitation of ranges or otherwise, a claim covers several compositions, the claim is ‘anticipated’ if one of them is in the prior art." Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (see MPEP §2131.03.I).
Mellos fails to disclose that there are 5-60 openings/cm2.
Noel teaches (fig. 1) an absorbent assembly (catamenial device 10) and thus in the same field of endeavor, comprising a wearer facing top layer (topsheet 14), characterized in that the top layer has openings (aperture 24) therein (¶ 0016).
While Noel fails to teach that there are 5-60 openings/cm2, Noel teaches that the open area of the openings and the percent open area can be optimized for a given fluid to be absorbed into an underlying layer (¶ 0028). Thus, Noel teaches that the openings per area is a result affective variable and discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233 (See MPEP §2144.05). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to optimize the number of openings per area such that there 5-60 openings/cm2 in order tailor the top layer for a given fluid (Noel, ¶ 0028).
Absent any showing of critical or unexpected results, such limitations appear to be routine optimization within the skill of the ordinary artisan before the effective filing date of the invention are therefore prima facie obvious.
Claim(s) 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mellos in view of Noel, as applied to claim 1 above, and further in view of Miao et al. (Pub. No.: US 2015/0313766 A1).
Regarding claim 15, Mellos in view of Noel fail to disclose wherein the openings have a bird’s eye shape.
Miao teaches (fig. 1-3) an absorbent assembly (feminine care absorbent article 100) and thus in the same field of endeavor, comprising a top layer (second topsheet layer 108), the top layer having openings (apertures 146), wherein the openings can be any suitable shape (¶ 0068) configured to acquire fluid (¶ 0068).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the shape of the openings of Mellos in view of Noel such that they have a shape configured to acquire fluid, as taught by Miao, such as a bird’s eye shape, in order to shape the openings to acquire fluid (Miao, ¶ 0068).
Changes in shape are a matter of design choice which a person of ordinary skill in the art would have found obvious (In re Dailey, 149 USPQ 47, see MPEP § 2144.04 IV. B.) as the applicant has not demonstrated the criticality of this limitation.
Claim(s) 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mellos in view of Noel, as applied to claim 1 above, and further in view of Rainville-Lonn et al. (Pub. No.: US 2004/0230175 A1).
Regarding claim 16, Mellos in view of Noel fail to disclose wherein the top layer is a jacquard technique.
Rainville-Lonn teaches (fig. 1) a washable and reusable absorbent undergarment (10, ¶ 0015) and thus in the same field of endeavor, comprising a layer (front and rear panels 14, 15) that is of a jacquard technique (¶ 0019) configured to provide an elastic fabric (¶ 0015).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the top layer of Mellos in view of Noel such that it is of a jacquard technique, as such technique is suitable for use in a washable and reusable absorbent undergarment (Rainville-Lonn ¶ 0019) in order to provide an elastic fabric (Rainville-Lonn ¶ 0015).
Claim(s) 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Yip et al. (Pat. No.: US 11,154,431 B1) in view of Noel.
Regarding claim 17, Yip discloses (fig. 1-3) a washable and reusable absorbent undergarment (10, col. 4, ln. 28-39) comprising an absorbent assembly (gusset 18), the absorbent undergarment having an extension in the longitudinal direction and in the transversal direction (fig. 1), the absorbent assembly comprising a wearer facing top layer (liner material 24) of a knitted material (col. 10, ln. 37-43), a moisture barrier (waterproof material 28) and at least one absorbent layer (absorbent material 26) located between the top layer and the moisture barrier (fig. 3, col. 4, ln. 61-col. 5, ln. 3), wherein the top layer is a single knit fabric layer (col. 10, ln. 37-43)
Yip fails to disclose the top layer having openings, and wherein each opening spans 2-10 stitches and there are 5-60 openings/cm2.
Noel teaches (fig. 1) an absorbent assembly (catamenial device 10) and thus in the same field of endeavor, comprising a wearer facing top layer (topsheet 14), characterized in that the top layer has openings (aperture 24) therein (¶ 0016).
While Noel fails to teach and wherein each opening spans 2-10 stitches and that there are 5-60 openings/cm2, Noel teaches that the open area of the openings and the percent open area can be optimized for a given fluid to be absorbed into an underlying layer (¶ 0028). Thus, Noel teaches that the span of the openings and the openings per area is a result affective variable and discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233 (See MPEP §2144.05). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to optimize the span of the openings such that it spans 2-10 stitches and the number of openings per area such that there 5-60 openings/cm2, in order tailor the top layer for a given fluid (Noel, ¶ 0028).
Absent any showing of critical or unexpected results, such limitations appear to be routine optimization within the skill of the ordinary artisan before the effective filing date of the invention are therefore prima facie obvious.
Claim(s) 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mellos in view of Noel, as applied to claim 1 above, and further in view of Riha-Scott (Pub. No.: US 2022/0061437 A1).
Regarding claim 20, Mellos in view of Noel fail to disclose wherein the top layer has a basis weight of 80-200 gsm.
Riha-Scott teaches (fig. 1) an absorbent assembly (textile assembly 100) for use in a washable and reusable absorbent undergarment (¶ 0001-¶ 0002) and thus in the same field of endeavor, the absorbent assembly comprising a top layer (first layer 110), wherein the top layer has a basis weight of 170 gsm (¶ 0513) which falls within the claimed range of 80-200 gsm, the top layer configured to exhibit faster wicking and drying properties (¶ 0511).
“[W]hen, as by a recitation of ranges or otherwise, a claim covers several compositions, the claim is ‘anticipated’ if one of them is in the prior art." Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (see MPEP §2131.03.I).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the top layer of Mellos in view of Noel such that it has a basis weight of 80-200 gsm, as taught by Riha-Scott, as such layer can exhibit faster wicking and drying properties (Riha-Scott, ¶ 0511).
Claim(s) 24 and 28 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mellos in view of Noel, as applied to claim 1 above, and further in view of Ahmed (Pub. No.: US 2024/0261155 A1).
Regarding claim 24, Mellos in view of Noel fail to disclose a wicking layer, wherein a basis weight of the wicking layer is 180-250 gsm.
Ahmed teaches (fig. 1) a washable and reusable absorbent undergarment (100, ¶ 0058) and thus in the same field of endeavor, comprising an absorbent assembly comprising a wicking layer (absorbent layer 126 configured to wick liquid, ¶ 0107), wherein a basis weight of the wicking layer is 150-500 gsm (¶ 0107) which encompasses the claimed range of 200-350 gsm, the wicking layer configured to wick liquid (¶ 0107).
In this case where the claimed ranges “overlap or lie inside ranges disclosed in the prior art”, a prima facie case of obviousness exists (MPEP §2144.05 I.).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify undergarment of Mellos in view of Noel such that it comprises a wicking layer, the basis weight of the wicking layer being180-250 gsm, as taught by Ahmed, in order to provide a wicking layer configured to wick liquid (Ahmed, ¶ 0107).
Regarding claim 28, Mellos in view of Noel fail to disclose wherein the basis weight of the absorbent layer is 200-350 gsm.
Ahmed teaches (fig. 1) a washable and reusable absorbent undergarment (100, ¶ 0058) and thus in the same field of endeavor, comprising an absorbent assembly comprising an absorbent layer (122), wherein a basis weight of the absorbent layer is 50-500 gsm (¶ 0107) which encompasses the claimed range of 200-350 gsm, the absorbent assembly configured to absorb liquid (¶ 0107).
In this case where the claimed ranges “overlap or lie inside ranges disclosed in the prior art”, a prima facie case of obviousness exists (MPEP §2144.05 I.).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the absorbent layer of Mellos in view of Noel such that the basis weight is 200-350 gsm, as taught by Ahmed, as such absorbent layer is configured to absorb liquid (Ahmed, ¶ 0107).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Bergman et al. (Pub. No.: US 2021/0402372 A1) discloses a washable and reusable absorbent assembly. Gray et al. (Pub. No.: US 2014/0296814 A1) discloses a washable and reusable absorbent article.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MEAGAN NGO whose telephone number is (571)270-1586. The examiner can normally be reached M - TH 8:00 - 4:00 PT.
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.
/MEAGAN NGO/Examiner, Art Unit 3781
/JACQUELINE F STEPHENS/Primary Examiner, Art Unit 3781