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 07/31/2026 has been entered. Claims 1 and 33 have 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
Applicant’s arguments with respect to claim(s) 1-2, 5, 7, 9-13, 15-18, 20, 22, 24, 28, and 31-33 have been considered but are moot because the new ground of rejection does not rely on Mellos in view of Noel for any teaching or matter specifically challenged in the argument. A new grounds of rejection is made over Mellos in view of Hammons.
Regarding claim 17, applicant’s arguments are persuasive and the rejection is therefore withdrawn.
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 Hammons et al. (Pub. No.: US 2009/0030390 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) spanning 3 stitches therein (¶ 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 wherein the total number of openings spanning 2-10 stitches per cm2 is 5-60.
Hammons teaches (fig. 1-3) an absorbent assembly (absorbent article 10) and thus in the same field of endeavor, comprising a wearer facing top layer (top sheet 20) of a knitted material (¶ 0081), characterized in that the top layer has openings (apertures 90, 70) wherein the number of openings per cm2 can be varied from about 1 opening/cm2 to about 60 openings/cm2 (¶ 0099) which overlaps with the claimed range of 5-60, wherein such openings are configured to collect fluids or provide comfort while wearing (¶ 0006).
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 openings spanning 2-10 stitches of Mellos such that the total number of openings per cm2 is 5-60, as taught by Hammons, in order to provide openings configured to collect fluids or provide comfort while wearing (Hammons ¶ 0006).
Regarding claim 2¸ Mellos in view of Hammons fail to disclose wherein the openings each have a dimension within the range of 0.3-2.0 mm.
Hammons further teaches wherein the openings each have a dimension in the range of 0.36 mm to 2.26 mm (the openings can be circular and can have an area between about 0.1 mm2 to about 4 mm2, ¶ 0074) which overlaps with the claimed range of 0.3-2.0 mm, wherein such openings are configured to collect fluids or provide comfort while wearing (¶ 0006).
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 openings of Mellos in view of Hammons such that they each have a dimension within the range of 0.3-2.0 mm, as taught by Hammons, in order to provide openings configured to collect fluids or provide comfort while wearing (Hammons ¶ 0006).
Regarding claim 5, Mellos in view of Hammons disclose wherein the number of openings per cm2 can be varied from about 1 opening/cm2 to about 60 openings/cm2 (Hammons ¶ 0099) which overlaps with the claimed range of 15-25 openings/cm2.
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 wherein the total number of openings spanning 2-10 stitches per cm2 is 5-60.
Hammons teaches (fig. 1-3) an absorbent assembly (absorbent article 10) and thus in the same field of endeavor, comprising a wearer facing top layer (top sheet 20) of a knitted material (¶ 0081), characterized in that the top layer has openings (apertures 90, 70) wherein the number of openings per cm2 can be varied from about 1 opening/cm2 to about 60 openings/cm2 (¶ 0099) which overlaps with the claimed range of 5-60, wherein such openings are configured to collect fluids or provide comfort while wearing (¶ 0006).
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 openings spanning 2-10 stitches of Mellos such that the total number of openings per cm2 is 5-60, as taught by Hammons, in order to provide openings configured to collect fluids or provide comfort while wearing (Hammons ¶ 0006).
Claim(s) 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mellos in view of Hammons, 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 Hammons 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 Hammons 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 Hammons, 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 Hammons 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 Hammons 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) 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mellos in view of Hammons, 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 Hammons 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 Hammons 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 Hammons, 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 Hammons 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 Hammons 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 Hammons 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 Hammons such that the basis weight is 200-350 gsm, as taught by Ahmed, as such absorbent layer is configured to absorb liquid (Ahmed, ¶ 0107).
Allowable Subject Matter
Claim 17 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter: claim 17 recites “wherein the top layer is a single knit fabric layer”. The closest prior art of record is Mellos (Pub. No.: US 2023/0082418 A1) which discloses the claimed wearer facing top layer having openings spanning 2-10 stitches. Mellos fails to disclose the top layer being a single knit fabric layer. Rather, Mellos discloses the top layer being a double knit fabric layer in order to create a hydrophobic and hydrophilic face on each side of the fabric. Thus, Mellos teaches away from a single knit fabric layer.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Mellos (Pub. No.: US 2023/0059401 A1) discloses an article having a knit top layer.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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
/PHILIP R WIEST/Primary Examiner, Art Unit 3781
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