DETAILED ACTION
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 4, 6, and 8 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 4 recites “the difference in the thickness in the first zone is greater than about 25 microns” without comparing it to another thickness or property of another zone. Claim 6 recites “the difference in basis weight in the first zone is greater than about 5 gsm” without comparing it to another basis weight or property of another zone. Claim 8 recites “the difference in volumetric density in the first zone is greater than about 0.042 g/cc” without comparing it to another volumetric density or property of another zone. There is insufficient antecedent basis for these limitations in the claims.
Claim Rejections - 35 USC § 103
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 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.
Claims 1-14 and 16-20 are rejected under 35 U.S.C. 103 as being unpatentable Neely et al. US Patent Application Publication 2007/0026753 in view of Isele et al. US Patent Application Publication 2015/0250662.
As to claim 1, Neely teaches a nonwoven fabric (paragraphs 0010, 0016, 0033, 0038) comprising:
a first surface and a second opposing surface and a first 52/62 and second 54/64 visually discernible zones on one of the first or second surfaces, wherein the first visually discernible zone 52/62 is free of overlap (Figure 2) with the second visually discernible zone 54/64 (Figures 2, 2A, and annotated Figure 3 below). The first zone 52/62 is positioned adjacent to the second zone 54/64 (Figures 2, 2A, and 3) and each of the first and second zones have a visually different pattern of three-dimensional features (Figures 2, 2A and 3, paragraph 0061).
In the web 60, each of the three-dimensional features defining a microzone comprising a first region 62a,64a and a second region 62b,64b, annotated Figure 3 below. The first and second regions having a difference in values for an intensive property where the intensive property is basis weight (paragraph 0033, 064, 0065), which is greater than zero.
Neely teaches the lower basis weight areas are incorporated for softness and low fluid retention and the higher basis weight areas are incorporated for strength and durability (paragraph 0097). Since the basis weight on the first surface 52/62 is lower and correlates to a softer zone than the higher basis weight second surface 54/64, it is obvious that the TS7 value, which correlates to softness is different in the first and second surfaces.
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Neely teaches the nonwoven fabric is used in an absorbent article for a diaper liner material that is placed adjacent to the wearer’s body (paragraph 0071). Neely does not teach the diaper construction. Isele teaches an absorbent article 20 comprising:
a liquid permeable topsheet 24:
a liquid impermeable backsheet 25:
an absorbent core 28 comprising an absorbent material, wherein one or more channel 26, 26’ are defined in the absorbent material (Isele Figs. 1 and 2; paragraphs 0048, 0052); and
an outer cover material 23 in facing relationship with the backsheet (Isele paragraph 0061). It would have been obvious to one having ordinary skill in the art before the invention was originally filed to provide the nonwoven fabric of Neely in the absorbent article of Isele. Doing so would provide a diaper liner having lower basis weight, higher permeability area in the ‘target areas’ of the diaper where the diaper is most likely to be contacted with liquids (Neely paragraph 0071).
As to claim 2, where the intensive property is basis weight, the zone 62 is a low basis weight zone and the zone 64 is a higher basis weight zone (paragraph 0064). Thus, the microzone 62a,62b of zone 62 would be a lower basis weight as compared to the microzone 64a,64b of zone 64 (paragraphs 0016, 0074-0075, 0094, 0130). Neely teaches the ratio of between the basis weight of the higher basis weight areas to lower basis weight area can be varied as desired. Neely teaches the higher basis weight areas can be from 1.5 to about 5 times greater than the basis weight of the lower basis weight areas (Neely paragraphs 0074-0075).
As to claim 3, wherein the intensive property is thickness, and wherein the thickness of every region is greater than zero – where Neely teaches a lower basis weight area 52 may represent a single layer of spunbond web and a higher basis weight area 54 may represent areas of three layers of spunbond web (Neely Figures 2A, 2; paragraphs 0091). The higher basis weight areas have a greater thickness due to the multiple layers.
As to claim 4, the examiner interprets the “difference in thickness in the first zone” as compared to the thickness in the second zone. Neely teaches a lower basis weight area 52 may represent a single layer of spunbond web and a higher basis weight area 54 may represent areas of three layers of spunbond web (Neely Figures 2A, 2; paragraphs 0091). The higher basis weight areas have a greater thickness due to the multiple layers. Neely does not specifically teach the difference in thickness is greater than about 25 microns. One having ordinary skill in the art would be able to determine through routine experimentation the difference in thickness needed for an intended design and use.
As to claim 5, wherein the intensive property is basis weight, and wherein the basis weight of every region is greater than zero (Neely paragraph 0094).
As to claim 6, the difference in basis weight in the first zone is greater than about 5 gsm - where the examiner interprets this limitation as the difference in basis weight in the first zone as compared to the basis weight in the second zone. Neely teaches the first zone 62 basis weight of 0.3 osy (10.17 gsm) (paragraph 0094) and the second zone 64 basis weight of 0.74 osy (25.9 gsm)(paragraph 0094). Thus, the difference in basis weight of the first zone 62 as compared to the second zone 62 is greater than about 5 gsm.
As to claim 7, Neely/Isele teach each region has a basis weight (paragraph 0094) and a thickness (Figure 2A), both greater than zero. Therefore, each region also has a volumetric density with a value greater than zero.
As to claim 8, Neely/Isele do not teach the difference in volumetric density in the first zone is greater than about 0.042 g/cc. Volumetric density is formulated by kg/m3, g/cm3, or lb/ft3. Since Neely teaches a difference in basis weight and thickness as discussed above in the rejections of claims 3-6. The differences in weight and thickness also provides a difference in density. While Neely does not specifically teach the claimed value for difference in volumetric density, one having ordinary skill in the art before the invention was originally filed would be able to determine through routine experimentation the difference in density needed for an intended design and use.
As to claims 9-13, Neely/Isele do not teach the claimed TS7 values. However, Neely teaches the lower basis weight areas are incorporated for softness and low fluid retention and the higher basis weight areas are incorporated for strength and durability (paragraph 0097). Since the basis weight on the first surface 52/62 is lower and correlates to a softer zone than the higher basis weight second surface 54/64, it is obvious that the TS7 value, which correlates to softness, is different in the first and second surfaces. While Neely does not teach TS7 values, Neely does teach a spunbond nonwoven with differing intensive properties. Since the prior art has met the structural requirements of the claim, Neely obviously includes a nonwoven capable of achieving the claimed test results. Additionally, the spunbond nonwoven of Neely is used in the same environment as the present invention to solve the same problem of providing softness and strength to components of an absorbent article.
As to claim 14, Neely/Isele teach the absorbent article comprising barrier leg cuffs 34 (Isele Fig. 2; paragraph 0048) and an elastic waist feature (Isele paragraph 0103).
As to claim 16, Neely/Isele teach the nonwoven fabric is a spunbond nonwoven fabric (Neely paragraph 0016).
As to claim 17, Neely/Isele teach the nonwoven fabric is through air bonded (Neely paragraphs 0004, 0052).
As to claim 18, Neely/Isele teach the absorbent article comprises back ears 40 (Isele Fig. 4; paragraph 0102).
As to claim 19, Neely/Isele teach the two channels 26, 26’ are defined in the absorbent material (Fig. 4, paragraph 0052).
As to claim 20, Neely teaches a nonwoven fabric (paragraphs 0010, 0016, 0033, 0038) comprising:
a first surface and a second opposing surface and a first 52/62 and second 54/64 visually discernible zones on one of the first or second surfaces, wherein the first visually discernible zone 52/62 is free of overlap (Figure 2) with the second visually discernible zone 54/64 (Figures 2, 2A, and annotated Figure 3 below). The first zone 52/62 is positioned adjacent to the second zone 54/64 (Figures 2, 2A, and 3) and each of the first and second zones have a visually different pattern of three-dimensional features (Figures 2, 2A and 3, paragraph 0061).
In the web 60, each of the three-dimensional features defining a microzone comprising a first region 62a,64a and a second region 62b,64b, annotated Figure 3 above. The first and second regions having a difference in values for an intensive property where the intensive property is basis weight (paragraph 0033, 064, 0065), which is greater than zero.
Neely teaches the lower basis weight areas are incorporated for softness and low fluid retention and the higher basis weight areas are incorporated for strength and durability (paragraph 0097). Since the basis weight on the first surface 52/62 is lower and correlates to a softer zone than the higher basis weight second surface 54/64, it is obvious that the TS7 value, which correlates to softness is different in the first and second surfaces.
Neely teaches the nonwoven fabric is used in an absorbent article for a diaper liner material that is placed adjacent to the wearer’s body (paragraph 0071). Neely does not teach the diaper construction. Isele teaches an absorbent article 20 comprising:
a front waist region 5;
a back waist region 6;
a crotch region 7 between the front and back waist regions (Isele Fig. 1; paragraph 0050);
a liquid permeable topsheet 24:
a liquid impermeable backsheet 25:
an absorbent core 28 comprising an absorbent material, wherein one or more channel 26, 26’ are defined in the absorbent material (Isele Figs. 1 and 2; paragraphs 0048, 0052); and
an outer cover material 23 in facing relationship with the backsheet (Isele paragraph 0061). It would have been obvious to one having ordinary skill in the art before the invention was originally filed to provide the nonwoven fabric of Neely in the absorbent article of Isele. Doing so would provide a diaper liner having lower basis weight, higher permeability area in the ‘target areas’ of the diaper where the diaper is most likely to be contacted with liquids (Neely paragraph 0071).
11. Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Neely in view of Isele as applied to claim 1 above and further in view of Weisman et al. US Patent Application Publication 2011/0073513.
Neely/Isele teach the present invention substantially as claimed. Neely/Isele does not teach a package of absorbent articles comprising absorbent articles of claim 14, wherein the package has an in-bag stack height of between about 70 mm and about 100 mm, according to the In-Bag Stack Height Test herein. Weisman teaches an absorbent product that exhibits an In-Bag Stack height of about 80mm as measured according to an In-Bag Stack Height Test (abstract) for the benefit of providing a less bulky diaper that is more comfortable to use and more cost effective to ship (Weisman paragraph 0008). It would have been obvious to one having ordinary skill in the art to provide the article of Neely/Isele with the claimed In- Bag Stack Height for the benefits taught in Weisman.
Double Patenting
12. 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.
13. Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 10,968,552. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the instant application is a broader recitation of the claims of the patent in that it does not set forth the microzones having hydrophilic and hydrophobic regions. Although the claims at issue are not identical, they are not patentably distinct from each other because the subject matter of the present application substantially overlaps the subject matter of the patent.
14. Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 11,661,689. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of U.S. Patent No. 11,661,689 contain each and every limitation of claim 1 of the instant application as well as additional features. The claims of the US Patent are narrower than the claims of the instant application, and effectively anticipate the instant claims. Thus the invention of the patent claims 1 and 17 are in effect a "species" of the "generic" invention of the instant claim 1. It has been held that the generic invention is “anticipated” by the “species". See ln re Goodman, 29 USPQ2d 2010 (Fed. Cir. 1993).
15. Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13, 15, and 16 of U.S. Patent No. 12,163,264. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of U.S. Patent No. 12,163,264 patent contains each and every limitation of claim 1 of the instant application as well as additional features. The claims of the US Patent are narrower than the claims of the instant application, and effectively anticipate the instant claims. Thus the invention of the patent claims 1 and 20 are in effect a "species" of the "generic" invention of the instant claim 1. It has been held that the generic invention is “anticipated” by the “species". See ln re Goodman, 29 USPQ2d 2010 (Fed. Cir. 1993).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JACQUELINE F STEPHENS whose telephone number is (571)272-4937. The examiner can normally be reached 8:30-5:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sarah Al-Hashimi can be reached at 571-272-7159. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JACQUELINE F STEPHENS/ Primary Examiner, Art Unit 3781
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