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 Amendment
The amendment filed 04/15/2026 has been entered. Claim 24 has been amended. Claims 3-4, 6, 8, 14, 19, 21, 23, 25-27 and 29-30 are cancelled. Claims 1-2, 5-, 7, 9-13, 15-18, 20, 22, 24, 28, and 31-33 remain pending in this application.
Response to Arguments
The amendment to claim 24 overcomes the 112(b) rejection and the 112(b) rejection is therefore withdrawn. The terminal disclaimer is accepted and the double patenting rejection is therefore withdrawn.
Applicant's arguments filed 04/15/2026 with respect to the rejections under 35 USC §103 have been fully considered but they are not persuasive.
Applicant argues, pages 8-9, that a person having ordinary skill in the art would not have modified Mellos’ knitted top layer with Noel’s nonwoven material. However, Noel is relied upon to teach a topsheet being apertured. Further, Noel teaches that the topsheet can be woven (¶ 0080).
Applicant argues, pages 9-11, that a person having ordinary skill in the art would not arrive at a knitted material with 5-60 openings/cm2 via routine optimization. Applicant argues that Noel is silent regarding the number of openings per area. However, Noel teaches tailoring the open area and the percent open area (¶ 0028). Noel’s recitation of “percent open area” relates to an area occupied by the openings and the open area relates to the size of the apertures. While Noel does not explicitly recite “openings per area”, such open area and percent open area, when optimized, result provide a number of openings per area.
Applicant argues, page 11, that Noel does not identify opening dimensions as result-effective variables. However, Noel teaches tailoring the open area of the apertures (¶ 0028) which is a dimension of the opening. While Noel teaches an area of the apertures, a person having ordinary skill in the art can acquire a dimension from the open area as they are related.
Applicant argues, pages 11-12, that claim 5 is allowable. However, such arguments regarding routine optimization are addressed above.
Applicant argues, page 12, that claim 20 is allowable. Applicant argues that Riha-Scott does not teach or suggest that its basis weight provides for faster wicking and drying properties. In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, Riha-Scott teaches that a top layer of the claimed basis weight exhibits faster wicking and drying properties. Accordingly, a person having ordinary skill in the art before the effective filing date of the claimed invention would be modified to modify the top layer of Mellos in view of Noel with the top layer of Riha-Scott since the top layer of Riha-Scott exhibits faster wicking and drying properties.
Terminal Disclaimer
The terminal disclaimer filed on 04/15/2026 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of copending application no. 18/683,984 has been reviewed and is accepted. The terminal disclaimer has been recorded.
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 Mellos in view of Noel, as applied to claim 1 above, and further in view of Yip et al. (Pat. No.: US 11,154,431 B1).
Regarding claim 17, Mellos in view of Noel fail to disclose wherein the top layer is a single knit fabric layer.
Yip teaches (fig. 1-3) a washable and reusable absorbent undergarment (10, col. 4, ln. 28-39) and thus in the same field of endeavor, comprising an absorbent assembly (gusset 18), the absorbent undergarment comprising a wearer facing top layer (liner material 24), wherein the top layer is a single knit fabric layer (col. 10, ln. 37-43) as such layer quickly absorbs liquid and pulls it away from the body (col. 10, ln. 37-43).
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 a single knit fabric layer, as taught by Yip, in order to provide a top layer that quickly absorbs liquid and pulls it away from the body (Yip col. 10, ln. 37-43).
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 wherein the absorbent assembly comprises a wicking layer, and 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 absorbent assembly 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. Smoter (Pat. No.: US 10,897,941 B1) discloses a reusable undergarment with a top layer of a knitted material. Carpenter (Pub. No.: US 2022/0160552 A1) discloses a reusable undergarment with a top layer of a knitted material.
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.
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/MEAGAN NGO/Examiner, Art Unit 3781
/CATHARINE L ANDERSON/Primary Examiner, Art Unit 3781
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