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 Status
Claims 1-22 are currently pending and under consideration.
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.
Claims 13-15 are 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 13 is dependent upon claim 12. Claim 13 introduces the range of “the superabsorbent particles of the first absorbent layer are present in an amount greater than 0 gsm and less than 200 gsm, the superabsorbent particles of the second absorbent layer are present in an amount greater than 0 gsm and less than 200 gsm, wherein claim 12 has previously presented the range superabsorbent particles being between 100 gsm and 250 gsm. The presence of the broader range of 0 gsm on the lower threshold and narrower range of 200 gsm on the upper threshold presented in claim 13 and the narrower range of 100 gsm and broader range of 250 gsm presented in claim 12 makes it unclear as to the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). As such claim 13 is being rejected under 112(b) herein as indefinite because there is a question or doubt as to which range is defining language of the claim.
Claims 14-15 are rejected as being dependent upon a rejected 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.
Claims 1,4, 7-8 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 11 of U.S. Patent No. 12,653,731 in view of Ducker et al. (U.S. Publication 2020/0060895).
U.S. patent No. 12, 653,731 claim 11 dependent upon claim 7 results in the following claimed limitations:
An absorbent structure having a longitudinal axis and a lateral axis and comprising:
A first substate material layer having a first surface and a second surface;
A second substate material layer having a first surface and a second surface; and
a mixture of superabsorbent particles and adhesive disposed between the first substrate material layer and the second substrate material layer, the superabsorbent particles being disposed in an amount greater than or equal to 500 gsm and less than or equal to 600 gsm, and wherein the adhesive is disposed in an amount greater than or equal to 3% and less than or equal to 4%, by weight, of the weight of the superabsorbent particles; wherein the adhesive forms a three-dimensional mesh network comprising network adhesive filaments with the superabsorbent particles immobilized within the mesh network, and the network adhesive filaments extending substantially throughout a three-dimensional space defined by the network adhesive filaments and the superabsorbent particles, and wherein the absorbent structure has a SAM Capture Value greater than or equal 95, according to the SAM Capture Test Method, and wherein the absorbent structure comprises 100% superabsorbent particles, by weight of absorbent material of the absorbent structure, wherein the absorbent structure does not comprise any adhesive other than the adhesive that is intermixed with the superabsorbent particles.
Regarding claim these limitations are seen to anticipate the current claim limitations of:
An absorbent structure a top facing material layer (equivalent to first substate), a bottom facing material layer (equivalent to second substrate), a first absorbent layer comprising superabsorbent particles intermixed with adhesive filaments (mixture of superabsorbent particles and adhesive dipsoed between the first substate layer and the second substrate layer), wherein the superabsorbent particles are present in an amount greater than or equal to 90%, by weight of absorbent material between the top facing material layer and the bottom facing material layer (absorbent structure comprises 100% superabsorbent particles, by weight of absorbent material of the absorbent structure, mixture of superabsorbent particles and adhesive disposed between the first substrate layer and the second substrate material), and wherein the adhesive filaments form a three-dimensional mesh network comprising network adhesive filaments with the superabsorbent particles immobilized within the mesh network, the network adhesive filaments and superabsorbent particles extending throughout a three-dimensional space defined by the network adhesive filaments and the superabsorbent particles (the adhesive forms a three-dimensional mesh network comprising network adhesive filaments with the superabsorbent particles immobilized within the mesh network and the network adhesive filaments extending substantially throughout a three-dimensional space defined by the network adhesive filaments and the superabsorbent particles).
Claim 11 fails to anticipate the absorbent structure as part of an absorbent article composition wherein the absorbent article comprises an inner bodyside liner; an outer cover; and the absorbent structure; or a lofty nonwoven reinforcing material disposed between the top facing material layer and the bottom facing material layer.
However, in view of Ducker et al. (U.S. Publication 2020/0060895), which in itself is seen to anticipate claim 1 as detailed below, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have include the absorbent structure in the absorbent article of Ducker as this would amount to nothing more than a substitution of the absorbent structure of Ducker for the absorbent structure as claimed in Claim 11 and simply substituting one absorbent structure means for another would yield the predictable result of allowing a(n) absorbent article to provide absorbency. See MPEP 2143.
Furthermore, it would have been obvious to have modified the absorbent structure as claimed in claim 11 to have include the lofty nonwoven reinforcing material of Ducker as detailed below in the rejection of claim 1, for the purpose of providing further acquisition/distribution of fluids throughout the absorbent product as taught by Ducker (¶0061 typically used as acquisition distribution layers in absorbent products).
Regarding claim 4, Claim 11 and Ducker are seen to render obvious the limitations of claim 1. Ducker further suggests the limitations of claim 4 as detailed in the rejection below. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have incorporated a second absorbent layer as taught by Ducker for the purpose of increasing the fluid absorbing capacity of the absorbent article as well as to provide an ADL between the layers that spreads or distributes the acquired liquid over a larger surface are of the absorbent core at a rate that the core can absorb the liquid without undesired runoff and leakage (¶0014 of Ducker).
Regarding claims 7 and 8, Claim 11 further anticipates the adhesive filaments being present in an amount less than 5%/4% (adhesive disposed in an amount greater than or equal to 3% and less than or equal to 4%, by weight of the superabsorbent particles).
Claims 2 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 11 of U.S. Patent No. 12,653,731 in view of Ducker et al. (U.S. Publication 2020/0060895).
Regarding claim 2, Claim 11 in view of Ducker is seen to anticipate the limitations of claim 1. The additional limitations of the absorbent structure comprising only the first absorbent layer is found to have been an obvious modification to one of ordinary skill in the art before the effective filing date of the claimed invention to claim 11 of U.S. Patent No. 12,653,731 in view of Ducker and Hansen (U.S. Publication 2003/0135178) . Hansen, in the same field of endeavor of absorbent articles teaches the ability to utilize a number of different placements and configurations of absorbent structure layering as seen specifically in Fig. 3 and Fig. 4 which shows two separate embodiments with Fig. 3 including only 1 absorbent layer 284 and Fig. 4 including two absorbent layers.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the device of claim 11 in view of Ducker to have only comprised the first absorbent layer and not the second absorbent layer as taught by Hansen, since it has been held that omission of an element and its function is obvious if the function of the element is not desired. See MPEP 2144.04. In the present case, omission of the second absorbent layer would have been obvious if the absorbent nature of the layer was not desired and as such would have been obvious to one of ordinary skill in the art as Hansen teaches the ability to include or omit such a layer depending on the desired absorbent profile (¶0116 various preferred absorbent laminate core 28 configurations are shown in Figs 2-15; ¶0116-0118 show variances of different configurations based on the fluid directing/storage capabilities required of the application).
Claims 9 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 11 of U.S. Patent No. 12,653,731 in view of Ducker et al. (U.S. Publication 2020/0060895) and Kufner et al. (U.S. Publication 2013/0174959).
Regarding claim 9, Claim 11 is seen to further anticipate the limitation of the adhesive filaments and the superabsorbent particles being intermixed, and wherein the absorbent structure lacks adhesive other than the adhesive intermixed with the superabsorbent particles (the absorbent structure does not comprise any adhesive other than the adhesive that is intermixed with the superabsorbent particles)
Prior to deposition onto a forming surface to form the absorbent structure is not expressly anticipated by Claim 11, however, Kufner in the same field of endeavor of superabsorbent structures, teaches intermixing of SAP particles and adhesive filaments prior to deposition onto a forming surface to form the absorbent structure (¶0021) for the purpose of partially coating the particles to allow the particles to be bound to one another and also adhere the sheet while maintaining the ability of moisture to directly contact the uncoated areas of the particles for direct absorption and allowing fuller expansion of the particles as the moisture is absorbed (¶0021).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have had the mixing between adhesive and superabsorbent occur prior to deposition onto a forming surface for the purpose of optimizing the intermingling and mixing of the adhesive and SAP (¶0023 of Kufner) for the purpose of partially coating the particles to allow the particles to be bound to one another and also adhere the sheet while maintaining the ability of moisture to directly contact the uncoated areas of the particles for direct absorption and allowing fuller expansion of the particles as the moisture is absorbed (¶0021 of Kufner).
Claim Rejections - 35 USC § 102
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1, 4, and 10 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Ducker et al. (U.S. Publication 2020/0060895).
Regarding claim 1, Ducker discloses an absorbent article (¶0028 disposable absorbent articles comprise: a liquid-permeable topsheet; a liquid-impermeable backsheet, and an embodiment of the present absorbent cores disposed between the topsheet and the backsheet; embodiment of Fig. 4D laminate 100a) extending in a longitudinal and a lateral direction (Fig. 1A show disposable absorbent articles comprising longitudinal and lateral dimensions and thus extension in these dimensions) and comprising:
an inner bodyside liner (¶0028 topsheet);
an outer cover (¶0028 backsheet); and
an absorbent structure 28 disposed between the inner bodyside liner and the outer cover (¶0029 intermediate the topsheet and the backsheet), the absorbent structure comprising:
a top facing material layer 124 disposed adjacent the bodyside liner (¶0028 disposed between topsheet and backsheet thus would be adjacent to topsheet; Fig. 11 illustrates placement of core between topsheet and an backsheet ¶0085 first layer considered topsheet because it defines a body facing surface, second layer considered a backsheet because it defines an outer surface of the pad that faces away from a patient or user);
a bottom facing material layer 128 disposed adjacent the outer cover (¶0028 disposed between topsheet and backsheet thus would be adjacent to topsheet; Fig. 11 illustrates placement of core between topsheet and an backsheet ¶0085 first layer considered topsheet because it defines a body facing surface, second layer considered a backsheet because it defines an outer surface of the pad that faces away from a patient or user);
a lofty nonwoven reinforcing material (112; ¶0061 carded polyester nonwovens of the types typically used as acquisition distribution layers) disposed between the top facing material layer 124 and the bottom facing material layer 128; and
a first absorbent layer 104 comprising superabsorbent particles intermixed with adhesive filaments (¶0062 absorbent sublayers comprises super-absorbent polymer particles and an adhesive supporting the SAP particles in a porous matrix; ¶0075 adhesive fibers) disposed between the top facing material layer and the lofty nonwoven reinforcing material (Fig. 4D shows disposition of 104 between 124 and 112),
wherein the superabsorbent particles are present in an amount greater than 90%, by weight of absorbent material between the top facing material layer and the bottom facing material layer (Fig. 4D discloses layers 104, 108, and 112 between the top facing material layer and bottom facing material layer, of these layers 112 is made from nonabsorbent polyester nonwoven as disclosed by ¶0061 and as such results in layers 104 and 108 making up the totality of absorbent material between the top facing material layer and the bottom facing material layer, these layers as described in ¶0062 each comprise SAP and adhesive with the adhesive making up 2% to 6% of the basis weight of the SAP particles leaving the layers to be made of between 94% and 98% thus being greater than 90%), and
wherein the adhesive filaments form a three-dimensional mesh network (¶0062 porous matrix) comprising network adhesive filaments with the superabsorbent particles immobilized within (¶0020 relative positions of SAP particles are fixed) the mesh network (¶0075 SAP particles mixed with adhesive fibers, hot melt adhesive fibers can be added in quantities necessary to produce materials that have lamination strengths strong enough to sustain the mechanical forces applied during converting, adhesive properties would inherently immobilize superabsorbent particles), the network adhesive filaments and superabsorbent particles extending throughout a three-dimensional space defined by the network adhesive filaments and the superabsorbent particles, with the network adhesive filaments extending in random orientations throughout the three-dimensional space (¶0075 fSAP particles conventially mixed with hot melt adhesive fibers produced by meltblown-type glue heads adhesive formed by meltblown systems, Keane et al., U.S. Publication 2003/0124336 discloses melt blowing processes resulting in randomly laid fiber ¶0154, thus meltblown adhesive fibers would be randomly oriented; ¶0020 matix may but need not have regular or uniform pattern of repeating substructures).
Regarding claim 4, Ducker discloses the absorbent article of claim 1. Ducker further discloses the first absorbent layer 104 being disposed between the top facing material layer and the lofty nonwoven reinforcing material (Fig. 4D shows positioning between 124 and 112), and wherein the absorbent structure further comprises a second absorbent layer 108 disposed between the lofty nonwoven reinforcing material 112 and the bottom facing material layer 126 (see Fig. 4D for illustration of placement between lofty nonwoven and bottom layer).
Regarding claim 10, Ducker discloses the absorbent article of claim 1. Ducker further discloses the absorbent garment lacking a surge or distribution layer between the absorbent structure and the bodyside liner (¶0028 disposable absorbent articles comprise: a liquid-permeable topsheet; a liquid-impermeable backsheet, and an embodiment of the present absorbent cores disposed between the topsheet and the backsheet; embodiment of Fig. 4D laminate 100a).
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.
Claim(s) 2 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ducker et al. (U.S. Publication 2020/0060895) in view of Hansen (U.S. Publication 2003/0135178).
Regarding claim 2, Ducker discloses the absorbent article of claim 1. Ducker does not expressly disclose only the first absorbent layer disposed between the top facing material layer and the lofty nonwoven reinforcing material or between the lofty nonwoven reinforcing material and the bottom facing material layer that does not comprise a second absorbent layer disposed between the other of the top facing material layer and the lofty nonwoven reinforcing material and the bottom facing material layer.
However, Hansen, in the same field of endeavor of absorbent articles teaches the ability to utilize a number of different placements and configurations of absorbent structure layering as seen specifically in Fig. 3 and Fig. 4 which shows two separate embodiments with Fig. 3 including only 1 absorbent layer 284 and Fig. 4 including two absorbent layers.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Ducker to have only comprised the first absorbent layer and not the second absorbent layer as taught by Hansen, since it has been held that omission of an element and its function is obvious if the function of the element is not desired. See MPEP 2144.04. In the present case, omission of the second absorbent layer would have been obvious if the absorbent nature of the layer was not desired and as such would have been obvious to one of ordinary skill in the art as Hansen teaches the ability to include or omit such a layer depending on the desired absorbent profile (¶0116 various preferred absorbent laminate core 28 configurations are shown in Figs 2-15; ¶0116-0118 show variances of different configurations based on the fluid directing/storage capabilities required of the application).
Regarding claim 3, Ducker in view of Hansen suggest the absorbent article of claim 2. Ducker further discloses the superabsorbent particles being disposed within the absorbent structure at a selected basis weight based on what is desired giving examples of 300 gsm or 200 gsm (¶0071 total basis weight of SAP of 300 gms…total basis weight of SAP 200 gsm).
Ducker does not expressly disclose the specific ranges of between 50 gsm and 600 gsm, however, 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 above disclosed values of Ducker to be within the ranges claimed by applicant, as applicant appears to have placed no criticality on 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). In the instant case, the values of Ducker lie inside the range claimed by applicant and Ducker would not operate differently with the claimed range. Further, applicant places no criticality on the ranged claimed, indicating simply that superabsorbent particles of the first and second absorbent layers are present in an amount between 50 gsm and 600 gsm (Page 64 of applicant’s spec).
Claim(s) 5-8 and 12-13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ducker et al. (U.S. Publication 2020/0060895).
Regarding claims 5-8, Ducker discloses the absorbent article of claim 4. Ducker further discloses the superabsorbent particles of the first and second absorbent layers being present in an amount between 50 to 150 gsm (¶0071 sublayers 104 and 108 can each include 50 gsm, 75 gsm, 100 gsm, or 150 gsm of SAP), wherein the superabsorbent particles of the first absorbent layer are present in equal amounts (¶0071 150 gsm of SAP in each of the sublayers) an the ability for the layers to differ in SAP amounts (¶0063 first sublayer is similar to second sublayer including in SAP basis weight and thickness; however, in other embodiments, second sublayer may differ from first sublayer in any of various properties such as SAP basis weight, thickness, and/or the like), wherein the adhesive filaments are present in an amount from 2% to 6% by weight of the superabsorbent particles (¶0062 the basis weight of adhesive may be from 2% to 6% of the basis weight of the SAP particles).
Ducker does not expressly disclose the specific ranges of between 100 gsm and 250 gsm (claim 5); greater than or equal to 75% (Claim 6); an amount less than 5% (Claim 7); or an amount less than 4% (Claim 8), however, 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 above disclosed values of Ducker to be within the ranges claimed by applicant, as applicant appears to have placed no criticality on 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). In the instant case, the values of Ducker overlap and lie inside the ranges claimed by applicant and Ducker would not operate differently with the claimed range. Further, applicant places no criticality on the ranged claimed, indicating simply that superabsorbent particles of the first and second absorbent layers are present in an amount between 100 gsm and 250 gsm (Page 2 and 3 of applicants spec) and a total quantity of adhesive may be present in an amount less than 4.5%, by weight of the superabsorbent particles (Page 3 of applicants spec) and that the absorbent structure may comprise superabsorbent particles within the first absorbent layer present in an amount measured in gsm that is greater than or equal to 75% of an amount of the superabsorbent particles within the second absorbent layer (Page 64 of applicant’s spec).
Regarding claims 12 and 13, Ducker discloses Ducker discloses an absorbent article (¶0028 disposable absorbent articles comprise: a liquid-permeable topsheet; a liquid-impermeable backsheet, and an embodiment of the present absorbent cores disposed between the topsheet and the backsheet; embodiment of Fig. 4D laminate 100a) extending in a longitudinal and a lateral direction (Fig. 1A show disposable absorbent articles comprising longitudinal and lateral dimensions and thus extension in these dimensions) and comprising:
an inner bodyside liner (¶0028 topsheet);
an outer cover (¶0028 backsheet); and
an absorbent structure 28 disposed between the inner bodyside liner and the outer cover (¶0029 intermediate the topsheet and the backsheet), the absorbent structure comprising:
a top facing material layer 124 disposed adjacent the bodyside liner (¶0028 disposed between topsheet and backsheet thus would be adjacent to topsheet; Fig. 11 illustrates placement of core between topsheet and a backsheet ¶0085 first layer considered topsheet because it defines a body facing surface, second layer considered a backsheet because it defines an outer surface of the pad that faces away from a patient or user);
a bottom facing material layer 128 disposed adjacent the outer cover (¶0028 disposed between topsheet and backsheet thus would be adjacent to topsheet; Fig. 11 illustrates placement of core between topsheet and an backsheet ¶0085 first layer considered topsheet because it defines a body facing surface, second layer considered a backsheet because it defines an outer surface of the pad that faces away from a patient or user);
a lofty nonwoven reinforcing material (112; ¶0061 carded polyester nonwovens of the types typically used as acquisition distribution layers) disposed between the top facing material layer 124 and the bottom facing material layer 128; and
a first absorbent layer 104 comprising superabsorbent particles intermixed with adhesive filaments (¶0062 absorbent sublayers comprises super-absorbent polymer particles and an adhesive supporting the SAP particles in a porous matrix; ¶0075 adhesive fibers) disposed between the top facing material layer and the lofty nonwoven reinforcing material (Fig. 4D shows disposition of 104 between 124 and 112);
and a second absorbent layer 108 comprising superabsorbent particles intermixed with adhesive filaments (¶0062 absorbent sublayers comprises super-absorbent polymer particles and an adhesive supporting the SAP particles in a porous matrix; ¶0075 adhesive fibers) disposed between the lofty nonwoven reinforcing material and the bottom facing material layer (Fig. 4D shows disposition of 108 between 112 and 128),
wherein the superabsorbent particles are present in an amount greater than 90%, by weight of absorbent material between the top facing material layer and the bottom facing material layer (Fig. 4D discloses layers 104, 108, and 112 between the top facing material layer and bottom facing material layer, of these layers 112 is made from nonabsorbent polyester nonwoven as disclosed by ¶0061 and as such results in layers 104 and 108 making up the totality of absorbent material between the top facing material layer and the bottom facing material layer, these layers as described in ¶0062 each comprise SAP and adhesive with the adhesive making up 2% to 6% of the basis weight of the SAP particles leaving the layers to be made of between 94% and 98% thus being greater than 90%), and
wherein the adhesive filaments form a three-dimensional mesh network (¶0062 porous matrix) comprising network adhesive filaments with the superabsorbent particles immobilized within (¶0020 relative positions of SAP particles are fixed) the mesh network (¶0075 SAP particles mixed with adhesive fibers, hot melt adhesive fibers can be added in quantities necessary to produce materials that have lamination strengths strong enough to sustain the mechanical forces applied during converting, adhesive properties would inherently immobilize superabsorbent particles), the network adhesive filaments and superabsorbent particles extending throughout a three-dimensional space defined by the network adhesive filaments and the superabsorbent particles, with the network adhesive filaments extending in random orientations throughout the three-dimensional space (¶0075 fSAP particles conventially mixed with hot melt adhesive fibers produced by meltblown-type glue heads adhesive formed by meltblown systems, Keane et al., U.S. Publication 2003/0124336 discloses melt blowing processes resulting in randomly laid fiber ¶0154, thus meltblown adhesive fibers would be randomly oriented; ¶0020 matix may but need not have regular or uniform pattern of repeating substructures).
Ducker further discloses the superabsorbent particles of the first and second absorbent layers being present in an amount between 50 to 150 gsm (¶0071 sublayers 104 and 108 can each include 50 gsm, 75 gsm, 100 gsm, or 150 gsm of SAP), wherein the superabsorbent particles of the first absorbent layer are present in equal amounts (¶0071 150 gsm of SAP in each of the sublayers) an the ability for the layers to differ in SAP amounts (¶0063 first sublayer is similar to second sublayer including in SAP basis weight and thickness; however, in other embodiments, second sublayer may differ from first sublayer in any of various properties such as SAP basis weight, thickness, and/or the like), wherein the adhesive filaments are present in an amount from 2% to 6% by weight of the superabsorbent particles (¶0062 the basis weight of adhesive may be from 2% to 6% of the basis weight of the SAP particles).
Ducker does not expressly disclose the specific ranges of between 100 gsm and 250 gsm (claim 12) or greater than 0 gsm and less than 200 gsm (claim 13); or an amount less than 4.5% (Claim 12), however, 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 above disclosed values of Ducker to be within the ranges claimed by applicant, as applicant appears to have placed no criticality on 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). In the instant case, the values of Ducker overlap and lie inside the ranges claimed by applicant and Ducker would not operate differently with the claimed range. Further, applicant places no criticality on the ranged claimed, indicating simply that superabsorbent particles of the first and second absorbent layers are present in an amount between 100 gsm and 250 gsm (Page 2 and 3 of applicants spec) and a total quantity of adhesive may be present in an amount less than 4.5%, by weight of the superabsorbent particles (Page 40 of applicants spec the adhesives may combine to equeal an add-on percentrage of between about 2% and about 7% or…less than about 4.5%) .
Claim(s) 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ducker et al. (U.S. Publication 2020/0060895) in view of Hansen (U.S. Publication 2003/0135178) and Kufner et al. (U.S. Publication 2013/0174959).
Regarding claim 9, Ducker in view of Hansen suggest the absorbent article of claim 3. Ducker further discloses the adhesive filaments and the superabsorbent particles mixed and deposited onto a forming surface (surface of nonwoven to which it is applied ¶0074) to form the absorbent structure (¶0074 the adhesive and SAP of each sublayer are applied as a mixture to the nonwoven web).
Ducker does not expressly disclose the mixing occurring prior to deposition onto a forming surface to form the absorbent structure, or the absorbent structure lacking adhesive other than the adhesive intermixed with the superabsorbent particles.
However, regarding the absorbent structure lacking adhesive other than the adhesive intermixed with the superabsorbent particles, Ducker describes the making the laminate in ¶0075-¶0076 that suggests that the binding of the layers together occurs due to connection of the layers together utilizing the adhesive mixed with the SAP particles before the adhesive has fully cooled ¶0076 suggesting that no other adhesive is required to form the absorbent structure. There is no mentioning of adding adhesives in addition to the adhesive fibers used in the mixture and as such it is likely that Ducker suggests that the absorbent structure does not comprise any adhesive other than the adhesive that is intermixed with the superabsorbent structure
Regarding the intermixing occurring prior to deposition onto a forming surface to form the absorbent structure, Kufner in the same field of endeavor of superabsorbent structures, teaches intermixing of SAP particles and adhesive filaments prior to deposition onto a forming surface to form the absorbent structure (¶0021) for the purpose of partially coating the particles to allow the particles to be bound to one another and also adhere the sheet while maintaining the ability of moisture to directly contact the uncoated areas of the particles for direct absorption and allowing fuller expansion of the particles as the moisture is absorbed (¶0021).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have had the mixing between adhesive and superabsorbent occur prior to deposition onto a forming surface for the purpose of optimizing the intermingling and mixing of the adhesive and SAP (¶0023 of Kufner) for the purpose of partially coating the particles to allow the particles to be bound to one another and also adhere the sheet while maintaining the ability of moisture to directly contact the uncoated areas of the particles for direct absorption and allowing fuller expansion of the particles as the moisture is absorbed (¶0021 of Kufner).
Claim(s) 11 and 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ducker et al. (U.S. Publication 2020/0060895) in view of Roe et al. (U.S. Publication 2016/0354260).
Regarding claim 11, Ducker discloses the absorbent article of claim 1. Ducker further discloses the absorbent structure being comprised of the top facing layer 124 and the back facing layer 128 , a lofty reinforcing material layer 112 comprising a polyester nonwoven ¶0061 and two absorbent layers made of adhesive filaments and SAP.
While the disclosure of Ducker stating the reinforcing material layer 112 is made of polyester suggests that it is not formed of cellulose and the lack of indication that cellulose is mixed into the mixture of SAP and adhesive of the absorbent layers suggests that these layers are free of cellulose, Ducker does not expressly disclose the entirety of the absorbent structure being free of cellulose as claimed.
However, Roe, in the same field of endeavor of absorbent cores for absorbent articles, teaches providing an absorbent core that is substantially free of cellulose fibers (¶0048 substantially free of cellulose fibers).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the materials of Ducker to have been free of cellulose as taught by Roe, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Furthermore, it has been held that omission of an element and its function is obvious if the function of the element is not desired. See MPEP 2144.04. As such, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have omitted cellulose fibers, and as shown by Roe above, one of ordinary skill would have been seen to have a reasonable chance of success in doing so.
Regarding claim 16, Ducker suggests the absorbent article of claim 12. Ducker further discloses the absorbent structure being comprised of the top facing layer 124 and the back facing layer 128 , a lofty reinforcing material layer 112 comprising a polyester nonwoven ¶0061 and two absorbent layers made of adhesive filaments and SAP.
While the disclosure of Ducker stating the reinforcing material layer 112 is made of polyester suggests that it is not formed of cellulose and the lack of indication that cellulose is mixed into the mixture of SAP and adhesive of the absorbent layers suggests that these layers are free of cellulose, Ducker does not expressly disclose the entirety of the absorbent structure being free of cellulose as claimed.
However, Roe, in the same field of endeavor of absorbent cores for absorbent articles, teaches providing an absorbent core that is substantially free of cellulose fibers (¶0048 substantially free of cellulose fibers).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the materials of Ducker to have been free of cellulose as taught by Roe, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Furthermore, it has been held that omission of an element and its function is obvious if the function of the element is not desired. See MPEP 2144.04. As such, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have omitted cellulose fibers, and as shown by Roe above, one of ordinary skill would have been seen to have a reasonable chance of success in doing so.
Claim(s) 14-15, 17, 18-20, and 22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ducker et al. (U.S. Publication 2020/0060895) in view of Kufner et al. (U.S. Publication 2013/0174959).
Regarding claims 14 and 15, Ducker suggests the absorbent article of claim 13. Ducker does not expressly disclose or suggest a total quantity of adhesive disposed between the top facing material layer and the bottom facing material layer is present in an amount less than 3.0%, by weight of the superabsorbent particles present between the top facing material layer and the bottom facing material layer, and wherein a SAM penetration value of the absorbent structure is less than or equal to 65% according to the SAM Penetration Test Method (Claim 14); or the total amount of free superabsorbent particles within the absorbent structure being less than 0.5g, according to the Free SAM determination test method.
Regarding the total quantity of adhesive disposed between the top facing material layer and the bottom facing material layer is present in an amount less than 3.0%, by weight of the superabsorbent particles present between the top facing material layer and the bottom facing material layer, as stated in the above rejection of claim 12 and 13, Ducker further discloses the adhesive filaments are present in an amount from 2% to 6% by weight of the superabsorbent particles (¶0062 the basis weight of adhesive may be from 2% to 6% of the basis weight of the SAP particles).
Ducker does not expressly disclose the specific range less than 3.0%, however, 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 above disclosed values of Ducker to be within the ranges claimed by applicant, as applicant appears to have placed no criticality on 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). In the instant case, the values of Ducker overlap and lie inside the ranges claimed by applicant and Ducker would not operate differently with the claimed range. Further, applicant places no criticality on the ranged claimed, indicating simply that a total quantity of adhesive may be present in an amount less than 3.0%, by weight of the superabsorbent particles (Page 40 of applicants spec the adhesives may combine to equal an add-on percentage of between about 2% and about 7% or…less than about 3.0%).
Regarding the SAM penetration test values and the Free SAM determination test values, the limitations of “wherein a SAM penetration value of the absorbent structure is less than or equal to 65% according to the SAM Penetration Test Method” and “the total amount of free superabsorbent particles within the absorbent structure being less than 0.5g, according to the Free SAM determination test method” are considered functional language. As determined by the applicant’s specification, it is best understood that the SAM penetration test and the Free SAM determination test are measures of the ability of the superabsorbent to be held by the adhesive such that it does not penetrate into the reinforcement layer and such that it remains held within the layer when exposed to the shaking methods described by the Free SAM determination test and is considered a result of the application method of adhesive to the superabsorbent particles utilized by the applicant to create the SAM/adhesive intermixture (Page 34 it has been found that forming absorbent layers according to the processes 300, 400 can ensure a lesser amount of superabsorbent material penetrates into the reinforcing web material; Page 48 high adhesive penetration into the interior region of the formed mixtures of the processes result help to drive improved absorbent structure properties including capture and stabilization of the superabsorbent particles).
While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function, because apparatus claims cover what a device is, not what a device does (Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990)). Thus, if a prior art structure is capable of performing the intended use as recited the claim, then it meets the claim. In the instant case, the device of Ducker discloses all the structure as claimed, but fails to disclose the exact methodology of the intermixing and application of the adhesive/SAP particles and as such it is uncertain as to whether the article would meet the test values required.
However, Kufner, in the same field of endeavor of manufacturing superabsorbent cores (title), teaches a methodology of intermixing and application of the adhesive/SAP particles (Fig. 3) wherein they optimize the intermingling and mixing of the adhesive and SAP powder to effectively adhere to the applied layer while maintaining effective liquid absorption by the SAP particles (¶0023 optimize the intermingling and mixing of the adhesive and SAP powder in the area in which intermingling takes place…¶0024 one preferred manner of entangling and partially coating the SAP particles with the adhesive filaments in such a manner that the mixture of intermingled adhesive and SAP particles may be effectively adhered to the first sheet…additionally the sap particles are effective to absorb liquid in the composite core structure).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the adhesive SAP mixture disclosed by Ducker to have been manufactured utilizing the technique of Kufner in order to optimize the intermingling and mixing of the adhesive and SAP powder to arrive at an effective adherence and entrapment of the SAP powder within the adhesive for the purpose of effectively adhering to the applied layer while maintaining effective liquid absorption by the SAP particles (¶0023 of Kufner optimize the intermingling and mixing of the adhesive and SAP powder in the area in which intermingling takes place…¶0024 of Kufner one preferred manner of entangling and partially coating the SAP particles with the adhesive filaments in such a manner that the mixture of intermingled adhesive and SAP particles may be effectively adhered to the first sheet…additionally the sap particles are effective to absorb liquid in the composite core structure).
The structure of Ducker in view of Kufner is seen to disclose all the structure as claimed and is optimized, as taught by Kufner, to have sufficient intermixing of the SAP and adhesive to effectively bind the SAP particles and as such is therefore seen to be capable of performing the functional language of a SAM penetration value of the absorbent structure being less than or equal to 65% according to the SAM penetration test method and the total amount of free superabsorbent particles within the absorbent structure being less than 0.5g, according to the free SAM determination test method.
Furthermore, Kufner discloses the intermingling and mixing of SAP and adhesive being a results effective variable that can be optimized through the adjustment of the angle of convergence between the first and second discharged streams of adhesive (¶0023 of Kufner) and since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine experimentation and is not inventive. See MPEP 2144.05. Presently discovering the optimum or workable range of intermingling of adhesive to SAP through the adjustment of the angle of convergence between the first and second discharged streams of adhesive to arrive at the claimed values is seen to involve only routine experimentation and is therefore not seen as inventive.
Regarding claim 17, Ducker suggests the absorbent article according to claim 12. Ducker further discloses the adhesive filaments and the superabsorbent particles mixed and deposited onto a forming surface (surface of nonwoven to which it is applied ¶0074) to form the absorbent structure (¶0074 the adhesive and SAP of each sublayer are applied as a mixture to the nonwoven web).
Ducker does not expressly disclose the mixing occurring prior to deposition onto a forming surface to form the absorbent structure, or the absorbent structure lacking adhesive other than the adhesive intermixed with the superabsorbent particles.
However, regarding the absorbent structure lacking adhesive other than the adhesive intermixed with the superabsorbent particles, Ducker describes the making the laminate in ¶0075-¶0076 that suggests that the binding of the layers together occurs due to connection of the layers together utilizing the adhesive mixed with the SAP particles before the adhesive has fully cooled ¶0076 suggesting that no other adhesive is required to form the absorbent structure. There is no mentioning of adding adhesives in addition to the adhesive fibers used in the mixture and as such it is likely that Ducker suggests that the absorbent structure does not comprise any adhesive other than the adhesive that is intermixed with the superabsorbent structure
Regarding the intermixing occurring prior to deposition onto a forming surface to form the absorbent structure, Kufner in the same field of endeavor of superabsorbent structures, teaches intermixing of SAP particles and adhesive filaments prior to deposition onto a forming surface to form the absorbent structure (¶0021) for the purpose of partially coating the particles to allow the particles to be bound to one another and also adhere the sheet while maintaining the ability of moisture to directly contact the uncoated areas of the particles for direct absorption and allowing fuller expansion of the particles as the moisture is absorbed (¶0021).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have had the mixing between adhesive and superabsorbent occur prior to deposition onto a forming surface for the purpose of optimizing the intermingling and mixing of the adhesive and SAP (¶0023 of Kufner) for the purpose of partially coating the particles to allow the particles to be bound to one another and also adhere the sheet while maintaining the ability of moisture to directly contact the uncoated areas of the particles for direct absorption and allowing fuller expansion of the particles as the moisture is absorbed (¶0021 of Kufner).
Regarding claim 18-20 and 22, Ducker discloses Ducker discloses an absorbent article (¶0028 disposable absorbent articles comprise: a liquid-permeable topsheet; a liquid-impermeable backsheet, and an embodiment of the present absorbent cores disposed between the topsheet and the backsheet; embodiment of Fig. 4D laminate 100a) extending in a longitudinal and a lateral direction (Fig. 1A show disposable absorbent articles comprising longitudinal and lateral dimensions and thus extension in these dimensions) and comprising:
an inner bodyside liner (¶0028 topsheet);
an outer cover (¶0028 backsheet); and
an absorbent structure 28 disposed between the inner bodyside liner and the outer cover (¶0029 intermediate the topsheet and the backsheet), the absorbent structure comprising:
a top facing material layer 124 disposed adjacent the bodyside liner (¶0028 disposed between topsheet and backsheet thus would be adjacent to topsheet; Fig. 11 illustrates placement of core between topsheet and a backsheet ¶0085 first layer considered topsheet because it defines a body facing surface, second layer considered a backsheet because it defines an outer surface of the pad that faces away from a patient or user);
a bottom facing material layer 128 disposed adjacent the outer cover (¶0028 disposed between topsheet and backsheet thus would be adjacent to topsheet; Fig. 11 illustrates placement of core between topsheet and an backsheet ¶0085 first layer considered topsheet because it defines a body facing surface, second layer considered a backsheet because it defines an outer surface of the pad that faces away from a patient or user);
a lofty nonwoven reinforcing material (112; ¶0061 carded polyester nonwovens of the types typically used as acquisition distribution layers) disposed between the top facing material layer 124 and the bottom facing material layer 128; and
a first absorbent layer 104 comprising superabsorbent particles intermixed with adhesive filaments (¶0062 absorbent sublayers comprises super-absorbent polymer particles and an adhesive supporting the SAP particles in a porous matrix; ¶0075 adhesive fibers) disposed between the top facing material layer and the lofty nonwoven reinforcing material (Fig. 4D shows disposition of 104 between 124 and 112);
and a second absorbent layer 108 comprising superabsorbent particles intermixed with adhesive filaments (¶0062 absorbent sublayers comprises super-absorbent polymer particles and an adhesive supporting the SAP particles in a porous matrix; ¶0075 adhesive fibers) disposed between the lofty nonwoven reinforcing material and the bottom facing material layer (Fig. 4D shows disposition of 108 between 112 and 128),
wherein the superabsorbent particles are present in an amount greater than 90%, by weight of absorbent material between the top facing material layer and the bottom facing material layer (Fig. 4D discloses layers 104, 108, and 112 between the top facing material layer and bottom facing material layer, of these layers 112 is made from nonabsorbent polyester nonwoven as disclosed by ¶0061 and as such results in layers 104 and 108 making up the totality of absorbent material between the top facing material layer and the bottom facing material layer, these layers as described in ¶0062 each comprise SAP and adhesive with the adhesive making up 2% to 6% of the basis weight of the SAP particles leaving the layers to be made of between 94% and 98% thus being greater than 90%), and
wherein the adhesive filaments form a three-dimensional mesh network (¶0062 porous matrix) comprising network adhesive filaments with the superabsorbent particles immobilized within (¶0020 relative positions of SAP particles are fixed) the mesh network (¶0075 SAP particles mixed with adhesive fibers, hot melt adhesive fibers can be added in quantities necessary to produce materials that have lamination strengths strong enough to sustain the mechanical forces applied during converting, adhesive properties would inherently immobilize superabsorbent particles), the network adhesive filaments and superabsorbent particles extending throughout a three-dimensional space defined by the network adhesive filaments and the superabsorbent particles, with the network adhesive filaments extending in random orientations throughout the three-dimensional space (¶0075 fSAP particles conventially mixed with hot melt adhesive fibers produced by meltblown-type glue heads adhesive formed by meltblown systems, Keane et al., U.S. Publication 2003/0124336 discloses melt blowing processes resulting in randomly laid fiber ¶0154, thus meltblown adhesive fibers would be randomly oriented; ¶0020 matix may but need not have regular or uniform pattern of repeating substructures),
the adhesive filaments and the superabsorbent particles mixed and deposited onto a forming surface (surface of nonwoven to which it is applied ¶0074) to form the absorbent structure (¶0074 the adhesive and SAP of each sublayer are applied as a mixture to the nonwoven web).
Ducker further discloses the superabsorbent particles of the first and second absorbent layers being present in an amount between 50 to 150 gsm (¶0071 sublayers 104 and 108 can each include 50 gsm, 75 gsm, 100 gsm, or 150 gsm of SAP), wherein the superabsorbent particles of the first absorbent layer are present in equal amounts (¶0071 150 gsm of SAP in each of the sublayers) an the ability for the layers to differ in SAP amounts (¶0063 first sublayer is similar to second sublayer including in SAP basis weight and thickness; however, in other embodiments, second sublayer may differ from first sublayer in any of various properties such as SAP basis weight, thickness, and/or the like), wherein the adhesive filaments are present in an amount from 2% to 6% by weight of the superabsorbent particles (¶0062 the basis weight of adhesive may be from 2% to 6% of the basis weight of the SAP particles).
Ducker does not expressly disclose the specific ranges of greater than 0 gsm and less than 200 gsm (claim 18); a total quantity of adhesive disposed between the top facing material layer and the bottom facing material layer is present in an amount less than 4.0% (Claim 18); a total quantity of adhesive disposed between the top facing material layer and the bottom facing material layer is present in an amount less than 3.0% (Claim 19); a SAM penetration value of the absorbent structure is less than or equal to 65% according to the SAM Penetration Test Method (Claim 18); or the total amount of free superabsorbent particles within the absorbent structure being less than 0.5g, according to the Free SAM determination test method (Claim 20); or the mixing occurring prior to deposition onto a forming surface to form the absorbent structure, or the absorbent structure lacking adhesive other than the adhesive intermixed with the superabsorbent particles (Claim 22).
Regarding the claimed ranges of SAP gsm, however, 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 above disclosed values of Ducker to be within the ranges claimed by applicant, as applicant appears to have placed no criticality on 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). In the instant case, the values of Ducker overlap and lie inside the ranges claimed by applicant and Ducker would not operate differently with the claimed range. Further, applicant places no criticality on the ranged claimed, indicating simply that superabsorbent particles of the first and second absorbent layers are present in an amount between 0 gsm and 200 gsm (Page 3 of applicants spec).
Regarding the total quantity of adhesive disposed between the top facing material layer and the bottom facing material layer is present in an amount less than 3.0%, by weight of the superabsorbent particles present between the top facing material layer and the bottom facing material layer, as stated in the above rejection of claim 12 and 13, Ducker further discloses the adhesive filaments are present in an amount from 2% to 6% by weight of the superabsorbent particles (¶0062 the basis weight of adhesive may be from 2% to 6% of the basis weight of the SAP particles).
Ducker does not expressly disclose the specific range less than 4.0%/3.0%, however, 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 above disclosed values of Ducker to be within the ranges claimed by applicant, as applicant appears to have placed no criticality on 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). In the instant case, the values of Ducker overlap and lie inside the ranges claimed by applicant and Ducker would not operate differently with the claimed range. Further, applicant places no criticality on the ranged claimed, indicating simply that a total quantity of adhesive may be present in an amount less than 4.0%/3.0%, by weight of the superabsorbent particles (Page 40 of applicants spec the adhesives may combine to equal an add-on percentage of between about 2% and about 7% or…less than about 4.0%...less than about 3.0%).
Regarding the SAM penetration test values and the Free SAM determination test values, the limitations of “wherein a SAM penetration value of the absorbent structure is less than or equal to 65% according to the SAM Penetration Test Method” and “the total amount of free superabsorbent particles within the absorbent structure being less than 0.5g, according to the Free SAM determination test method” are considered functional language. As determined by the applicant’s specification, it is best understood that the SAM penetration test and the Free SAM determination test are measures of the ability of the superabsorbent to be held by the adhesive such that it does not penetrate into the reinforcement layer and such that it remains held within the layer when exposed to the shaking methods described by the Free SAM determination test and is considered a result of the application method of adhesive to the superabsorbent particles utilized by the applicant to create the SAM/adhesive intermixture (Page 34 it has been found that forming absorbent layers according to the processes 300, 400 can ensure a lesser amount of superabsorbent material penetrates into the reinforcing web material; Page 48 high adhesive penetration into the interior region of the formed mixtures of the processes result help to drive improved absorbent structure properties including capture and stabilization of the superabsorbent particles).
While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function, because apparatus claims cover what a device is, not what a device does (Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990)). Thus, if a prior art structure is capable of performing the intended use as recited the claim, then it meets the claim. In the instant case, the device of Ducker discloses all the structure as claimed, but fails to disclose the exact methodology of the intermixing and application of the adhesive/SAP particles and as such it is uncertain as to whether the article would meet the test values required.
However, Kufner, in the same field of endeavor of manufacturing superabsorbent cores (title), teaches a methodology of intermixing and application of the adhesive/SAP particles (Fig. 3) wherein they optimize the intermingling and mixing of the adhesive and SAP powder to effectively adhere to the applied layer while maintaining effective liquid absorption by the SAP particles (¶0023 optimize the intermingling and mixing of the adhesive and SAP powder in the area in which intermingling takes place…¶0024 one preferred manner of entangling and partially coating the SAP particles with the adhesive filaments in such a manner that the mixture of intermingled adhesive and SAP particles may be effectively adhered to the first sheet…additionally the sap particles are effective to absorb liquid in the composite core structure).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the adhesive SAP mixture disclosed by Ducker to have been manufactured utilizing the technique of Kufner in order to optimize the intermingling and mixing of the adhesive and SAP powder to arrive at an effective adherence and entrapment of the SAP powder within the adhesive for the purpose of effectively adhering to the applied layer while maintaining effective liquid absorption by the SAP particles (¶0023 of Kufner optimize the intermingling and mixing of the adhesive and SAP powder in the area in which intermingling takes place…¶0024 of Kufner one preferred manner of entangling and partially coating the SAP particles with the adhesive filaments in such a manner that the mixture of intermingled adhesive and SAP particles may be effectively adhered to the first sheet…additionally the sap particles are effective to absorb liquid in the composite core structure).
The structure of Ducker in view of Kufner is seen to disclose all the structure as claimed and is optimized, as taught by Kufner, to have sufficient intermixing of the SAP and adhesive to effectively bind the SAP particles and as such is therefore seen to be capable of performing the functional language of a SAM penetration value of the absorbent structure being less than or equal to 65% according to the SAM penetration test method and the total amount of free superabsorbent particles within the absorbent structure being less than 0.5g, according to the free SAM determination test method.
Furthermore, Kufner discloses the intermingling and mixing of SAP and adhesive being a results effective variable that can be optimized through the adjustment of the angle of convergence between the first and second discharged streams of adhesive (¶0023 of Kufner) and since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine experimentation and is not inventive. See MPEP 2144.05. Presently discovering the optimum or workable range of intermingling of adhesive to SAP through the adjustment of the angle of convergence between the first and second discharged streams of adhesive to arrive at the claimed values is seen to involve only routine experimentation and is therefore not seen as inventive.
Regarding the absorbent structure lacking adhesive other than the adhesive intermixed with the superabsorbent particles, however, Ducker describes the making the laminate in ¶0075-¶0076 that suggests that the binding of the layers together occurs due to connection of the layers together utilizing the adhesive mixed with the SAP particles before the adhesive has fully cooled ¶0076 suggesting that no other adhesive is required to form the absorbent structure. There is no mentioning of adding adhesives in addition to the adhesive fibers used in the mixture and as such it is likely that Ducker suggests that the absorbent structure does not comprise any adhesive other than the adhesive that is intermixed with the superabsorbent structure
Regarding the intermixing occurring prior to deposition onto a forming surface to form the absorbent structure, Kufner in the same field of endeavor of superabsorbent structures, teaches intermixing of SAP particles and adhesive filaments prior to deposition onto a forming surface to form the absorbent structure (¶0021) for the purpose of partially coating the particles to allow the particles to be bound to one another and also adhere the sheet while maintaining the ability of moisture to directly contact the uncoated areas of the particles for direct absorption and allowing fuller expansion of the particles as the moisture is absorbed (¶0021).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have had the mixing between adhesive and superabsorbent occur prior to deposition onto a forming surface for the purpose of optimizing the intermingling and mixing of the adhesive and SAP (¶0023 of Kufner) for the purpose of partially coating the particles to allow the particles to be bound to one another and also adhere the sheet while maintaining the ability of moisture to directly contact the uncoated areas of the particles for direct absorption and allowing fuller expansion of the particles as the moisture is absorbed (¶0021 of Kufner).
Claim(s) 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ducker et al. (U.S. Publication 2020/0060895) in view of Kufner et al. (U.S. Publication 2013/0174959) and Roe et al. (U.S. Publication 2016/0354260).
Regarding claim 21, Ducker in view of Kufner suggest the absorbent article according to claim 18. Ducker further discloses the absorbent structure being comprised of the top facing layer 124 and the back facing layer 128 , a lofty reinforcing material layer 112 comprising a polyester nonwoven ¶0061 and two absorbent layers made of adhesive filaments and SAP.
While the disclosure of Ducker stating the reinforcing material layer 112 is made of polyester suggests that it is not formed of cellulose and the lack of indication that cellulose is mixed into the mixture of SAP and adhesive of the absorbent layers suggests that these layers are free of cellulose, Ducker does not expressly disclose the entirety of the absorbent structure being free of cellulose as claimed.
However, Roe, in the same field of endeavor of absorbent cores for absorbent articles, teaches providing an absorbent core that is substantially free of cellulose fibers (¶0048 substantially free of cellulose fibers).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the materials of Ducker to have been free of cellulose as taught by Roe, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Furthermore, it has been held that omission of an element and its function is obvious if the function of the element is not desired. See MPEP 2144.04. As such, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have omitted cellulose fibers, and as shown by Roe above, one of ordinary skill would have been seen to have a reasonable chance of success in doing so.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Ducker et al. (U.S. Publication 2011/0162989) discloses a method of mixing suberabsorbent and adhesive filaments.
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/PETER DANIEL SMITH/Examiner, Art Unit 3781
/PHILIP R WIEST/Primary Examiner, Art Unit 3781
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