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 amendment filed 05/05/2026 is accepted and entered. Applicant’s amendments to the claims have overcome the previous claim objections and the previous claim objections have been withdrawn.
Applicant's arguments filed 05/05/2026 have been fully considered but they are not persuasive.
Applicant argues that Gross teaches the apertures 125 extend all the way through both the wearer facing layer 110 and the second layer 150. However, this is not found persuasive. Gross clearly envisions an embodiment of the invention where the apertures are present only in layer 110, allowing layer 150 to be visible through the apertures in layer 110 (¶ [0068]: “The second layer 150, in some forms, may not include apertures”; ¶ [0072]: “As another example, forms of the present invention are contemplated where the first layer 110 is apertured and the second layer 150 is not apertured. Where the first color and the second color are different, the second color may be visible through the apertures 125 in the first layer 110 if the ΔE* between the first color and the second color was at least 2.5.”). Therefore, Gross discloses the limitations of Claims 1 and 17 as set forth below.
Applicant did not specifically argue the dependent claims.
Claim Rejections – 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-4, 10, 11, 13, and 15-17 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Gross et al (US 2016/0278986).
Regarding Claim 1, Gross discloses a washable and reusable absorbent undergarment (¶ [0056, 0058, 0061]; the absorbent articles “can” be disposable; therefore, it is within the scope of Gross that the absorbent articles can also be washable/reusable, which is the alternative to disposable; additionally, any absorbent article is fully capable of being washed and reused to at least some extent) of knitted or woven materials (¶ [0004]) having an extension in the longitudinal direction and in the transversal direction (Fig. 4) comprising an absorbent assembly (chassis, Fig. 4; ¶ [0147]), the absorbent assembly comprising: a first wearer facing layer (topsheet 24, Fig. 4; first layer 110, Fig. 1B; ¶ [0066-0067, 0070, 0147]) having openings (apertures 125, Fig. 1A-1B) therein, a garment-facing moisture barrier (backsheet 25, Fig. 4; ¶ [0147]), and a second layer (150, Fig. 1B; ¶ [0066-0067, 0070, 0147]) directly beneath said first wearer facing layer (110, Fig. 1B), the second layer (150, Fig. 1B) being a wicking layer (¶ [0070]; a distribution layer or secondary topsheet can both be considered wicking layers), wherein: the first wearer facing layer (110, Fig. 1B) has, in the CIE L*a*b* color space, an L* value, the second layer (150, Fig. 1B) has, in the CIE L*a*b* color space, an L* value, there is a mutual color difference delta E*ab between the first wearer facing layer (110, Fig. 1B) and the second layer (150, Fig. 1B) of at least 15 (¶ [0058-0059, 0067]; the first layer can comprise a first color and the second layer can comprise a second color, where the second layer/color can be conventional white and the first layer/color can be other than conventional white; ¶ [0063, 0095, 0106] indicate the delta E between first and second color can be greater than 10, with 63 specifically mentioned; ¶ [0330-0342] indicate sample laminates with a white upper layer and various colored lower layers, with Table 1 showing the CIE L*a*b* values for the individual colored layers; Example 6 utilized a white upper layer and an orchid lower layer, and based on ¶ [0067] these colors can be swapped such that the upper layer is orchid and the lower layer is white; calculating the delta E between the orchid upper layer and white lower layer using the CIE L*a*b* values in Table 1 result in a delta E value of between 65 and 69 for an orchid upper layer and white lower layer), and
the first wearer facing layer (110, Fig. 1B) and the second layer (150, Fig. 1B) are arranged such that the second layer (150, Fig. 1B) is visible through the openings (125, Fig. 1B) in the first wearer facing layer (110, Fig. 1B; ¶ [0068, 0072] indicate that the second layer may not have apertures; an embodiment where 110 is apertured and 150 is not is clearly envisioned, with the second color of layer 150 being visible through the apertures of layer 110).
Regarding Claims 2 and 3, Gross discloses the color difference delta E*ab is at least 35 (¶ [0058-0059, 0067]; the first layer can comprise a first color and the second layer can comprise a second color, where the second layer/color can be conventional white and the first layer/color can be other than conventional white; ¶ [0063, 0095, 0106] indicate the delta E between first and second color can be greater than 10, with 63 specifically mentioned; ¶ [0330-0342] indicate sample laminates with a white upper layer and various colored lower layers, with Table 1 showing the CIE L*a*b* values for the individual colored layers; Example 6 utilized a white upper layer and an orchid lower layer, and based on ¶ [0067] these colors can be swapped such that the upper layer is orchid and the lower layer is white; calculating the delta E between the orchid upper layer and white lower layer using the CIE L*a*b* values in Table 1 result in a delta E value of between 65 and 69 for an orchid upper layer and white lower layer).
Regarding Claim 4, Gross discloses the second layer (150, Fig. 1B) has a higher L* value than the first wearer facing layer (110, Fig. 1B; ¶ [0330-0342] indicate sample laminates with a white upper layer and various colored lower layers, with Table 1 showing the CIE L*a*b* values for the individual colored layers; Example 6 utilized a white upper layer and an orchid lower layer, and based on ¶ [0067] these colors can be swapped such that the upper layer is orchid and the lower layer is white; the L* of white is higher than the L* of orchid, and therefore the L* of the second white layer is higher than the L* of the first orchid layer).
Regarding Claim 10, Gross discloses the openings (125, Fig. 1A) are arranged in transversal rows (as seen in Fig. 1A).
Regarding Claim 11, Gross discloses the openings (125, Fig. 1A) in adjacent rows are offset in relation to each other (as seen in Fig. 10D, the large apertures are in rows where the rows are offset in relation to each other).
Regarding Claim 13, Gross discloses the first wearer facing layer (110, Fig. 1B) is a single layer (¶ [0070]).
Regarding Claim 15, Gross discloses the absorbent assembly comprises two absorbent layers (¶ [0161]).
Regarding Claim 16, Gross discloses the first wearer facing layer (110, Fig. 1B) is not a spacer fabric (¶ [0070]; a single layer of nonwoven material would not be considered a spacer fabric).
Regarding Claim 17, Gross discloses a washable and reusable absorbent undergarment (¶ [0056, 0058, 0061]; the absorbent articles “can” be disposable; therefore, it is within the scope of Gross that the absorbent articles can also be washable/reusable, which is the alternative to disposable; additionally, any absorbent article is fully capable of being washed and reused to at least some extent) having an extension in the longitudinal direction and in the transversal direction (Fig. 4) comprising an absorbent assembly (chassis, Fig. 4; ¶ [0147]), the absorbent assembly comprising a first wearer facing layer (topsheet 24, Fig. 4; first layer 110, Fig. 1B; ¶ [0066-0067, 0070, 0147]) having openings (apertures 125, Fig. 1A-1B) therein, a garment-facing moisture barrier (backsheet 25, Fig. 4; ¶ [0147]), a second layer (150, Fig. 1B; ¶ [0066-0067, 0070, 0147]) directly beneath said first wearer facing layer (110, Fig. 1B), the second layer (150, Fig. 1B) being a wicking layer (¶ [0070]; a distribution layer or secondary topsheet can both be considered wicking layers), wherein the first wearer facing layer (110, Fig. 1B) has, in the CIE L*a*b* color space, an L* value, the second layer (150, Fig. 1B) has, in the CIE L*a*b* color space, an L* value, and there is a mutual color difference delta E*ab between the first wearer facing layer (110, Fig. 1B) and the second layer (150, Fig. 1B) of at least 15 (¶ [0058-0059, 0067]; the first layer can comprise a first color and the second layer can comprise a second color, where the second layer/color can be conventional white and the first layer/color can be other than conventional white; ¶ [0063, 0095, 0106] indicate the delta E between first and second color can be greater than 10, with 63 specifically mentioned; ¶ [0330-0342] indicate sample laminates with a white upper layer and various colored lower layers, with Table 1 showing the CIE L*a*b* values for the individual colored layers; Example 6 utilized a white upper layer and an orchid lower layer, and based on ¶ [0067] these colors can be swapped such that the upper layer is orchid and the lower layer is white; calculating the delta E between the orchid upper layer and white lower layer using the CIE L*a*b* values in Table 1 result in a delta E value of between 65 and 69 for an orchid upper layer and white lower layer), and
the first wearer facing layer (110, Fig. 1B) and the second layer (150, Fig. 1B) are arranged such that the second layer (150, Fig. 1B) is visible through the openings (125, Fig. 1B) in the first wearer facing layer (110, Fig. 1B; ¶ [0068, 0072] indicate that the second layer may not have apertures; an embodiment where 110 is apertured and 150 is not is clearly envisioned, with the second color of layer 150 being visible through the apertures of layer 110).
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.
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) 5-9, 12, and 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gross et al (US 2016/0278986) in view of Goijarts et al (US 2016/0326674).
Regarding Claims 5 and 6, Gross is silent whether each of the openings in the first wearer facing layer has a dimension within the range of 0.3-3mm, and wherein the first wearer facing layer is of a knitted fabric.
Goijarts teaches a textile that distributes pressure and moisture, thus being in the same field of endeavor, where the top layer has openings (2, Fig. 1), where the openings each have a dimension within the range of 0.3 – 3 mm (¶ [0037]; the recesses have a depth of 0.5 – 3 mm which is fully within the claimed range) and the top layer is of a knitted fabric (¶ [0037]). The recesses don’t have direct contact with the skin, which improves the slidability and ventilation of the textile (¶ [0037]).
Therefore, 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 in the first wearer facing layer of Gross to each have a dimension within the range of 0.3-3mm and where the first wearer facing layer is a knitted fabric, as taught by Goijarts, as this improves the slidability and ventilation of the absorbent article of Gross/Goijarts (as motivated by Goijarts ¶ [0037]).
Regarding Claim 7, Gross is silent whether each opening spans 1-10 stitches.
Goijarts teaches the openings (2, Fig. 1) span 1-10 stitches (¶ [0037]) to improve the slidability and ventilation of the textile (¶ [0037]).
Therefore, it would have been obvious to modify the openings of Gross to span 1-10 stitches, as taught by Goijarts, to improve the slidability and ventilation of the absorbent article of Gross/Goijarts (as motivated by Goijarts ¶ [0037]).
The combination of Gross/Goijarts is silent whether there are 5-60 openings/cm2.
However, Gross discloses that the fluid handling capabilities of the laminate can be impacted by various properties, including the aperture density (¶ [0235]). As such, the aperture density is disclosed to be a result effective variable in that changing the aperture density changes the fluid handling capabilities of the laminate. Further, it appears that one of ordinary skill in the art would have had a reasonable expectation of success in modifying Gross/Goijarts to have an aperture density within the claimed range, as it involves only adjusting the dimension of a component disclosed to require adjustment. Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify Gross/Goijarts to hve an aperture density within the range of 5-60 openings/cm2 as a matter of routine optimization since it has been held that “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Regarding Claim 8, Gross is silent whether each opening spans 1-8 stitches.
Goijarts teaches the openings (2, Fig. 1) span 1-8 stitches (¶ [0037] indicates each opening can have a width from 1-5 stitches) to improve the slidability and ventilation of the textile (¶ [0037]).
Therefore, it would have been obvious to modify the openings of Gross to span 1-8 stitches, as taught by Goijarts, to improve the slidability and ventilation of the absorbent article of Gross/Goijarts (as motivated by Goijarts ¶ [0037]).
Regarding Claim 9, Gross is silent whether each opening spans 2-6 stitches.
Goijarts teaches the openings (2, Fig. 1) span 1-10 stitches (¶ [0037]) to improve the slidability and ventilation of the textile (¶ [0037]).
However, Goijarts does not explicitly disclose the openings span 2-6 stitches.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the openings of Gross/Goijarts to be from spanning 1-10 stitches to spanning 2-6 stitches as applicant appears to have placed no criticality on the claimed range (see ¶ [0017] of published application indicating the dimension “may” be within the claimed range) and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art' a prima facie case of obviousness exists”. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Therefore, it would have been obvious to modify the openings of Gross to span from 1-10 stitches to 2-6 stitches, as taught by Goijarts, to improve the slidability and ventilation of the absorbent article of Gross/Goijarts (as motivated by Goijarts ¶ [0037]).
Regarding Claim 12, Gross is silent whether the first wearer facing layer is of a Jacquard technique.
Goijarts teaches a textile with a top layer that is a knitted Jacquard fabric (¶ [0037]). The structure of this fabric improves the slidability and ventilation of the textile (¶ [0037]).
Therefore, it would have been obvious to modify the first wearer facing layer of Gross to be of a Jacquard technique, as taught by Goijarts, as the structure that results would improve the slidability and ventilation of the absorbent article of Gross/Goijarts (as motivated by Goijarts ¶ [0037]).
Regarding Claim 14, Gross is silent whether the openings are tuck stitches.
Goijarts teaches a top layer for a textile that is formed with openings created by tuck stitches (¶ [0049]). This results in a raised structure that has better gliding characteristics than a completely flat surface (¶ [0049]).
Therefore, it would have been obvious to modify the openings of Gross to be tuck stitches, as taught by Goijarts, as tuck stitches result in a raised structure that has better gliding characteristics than a completely flat surface (as motivated by Goijarts ¶ [0049]).
Conclusion
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 Jessica Arble whose telephone number is (571)272-0544. The examiner can normally be reached Mon - Fri 9 AM - 5 PM.
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/JESSICA ARBLE/ Primary Examiner, Art Unit 3781
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