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 Objections
Claim 18 recites the limitation “a tampon pledget”, however the limitation “a tampon” has previously been recited in Claim 1 which is incorporated into Claim 18. It is recommended to revise the language of Claim 18 to indicate the tampon (as recited in Claim 1) further comprises a pledget.
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 1-20 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.
Regarding Claim 1, the limitation “a tampon” is recited in line 2 and line 6. It is unclear if these recitations are intended to refer to the same tampon or to different tampons. For the purpose of compact prosecution, these limitations are interpreted as referring to the same tampon (i.e., as if the limitation in line 6 reads “the tampon”). Claims 2-20 are also rejected based on their dependency on Claim 1.
Regarding Claims 2, 5, and 10, the phrase "such as" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d). For the purpose of compact prosecution, the limitations following the phrase “such as” are not interpreted as required by the claim.
Regarding Claim 15, the limitation “a tampon” is recited in line 7. The limitation “a tampon” was previously recited in Claim 1, and as such it is unclear if this recitation of “a tampon” is intended to refer to the same tampon as in Claim 1 or a different tampon. For the purpose of compact prosecution, this recitation is interpreted as referring to the same tampon as of Claim 1.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1, 3, 6, 13, 15, and 18 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Jarmon et al (US 2005/0177091).
Regarding Claim 1, Jarmon discloses a tampon applicator (10, Figs. 1-5) comprising:
an elongated barrel (12, Figs. 1-5) having an interior chamber for housing a tampon (14, Figs. 1-4; ¶ [0022]) therein, an outer end (18, Figs. 1-5) and an inner end (28, Figs. 1-5) spaced longitudinally from the outer end (18, Figs. 1-5), and a grip region (fingergrip area 20, Figs. 1-5) generally adjacent the outer end (18, Figs. 1-5) of the barrel (12, Figs. 1-5);
a plunger (16, Figs. 1-5) extending into the barrel (12, Figs. 1-5) at the outer end (18, Figs. 1-5) thereof and moveable relative to the barrel (12, Figs. 1-5) to expel a tampon (14, Figs. 1-5) from the barrel (12, Figs. 1-5) at the inner end (28, Figs. 1-5) of the barrel (12, Figs. 1-5); and
wherein the grip region (20, Fig. 5) has a first end (see Image 1) and a second and opposite end (18, Fig. 5) that coincides with the inner end (28, Fig. 5) of the barrel (12, Fig. 5), the second end (18, Fig. 5) defining a grip ring (circumferential ring 34, Fig. 5) and wherein the grip region (20, Fig. 5) gradually tapers from the first end (see Image 1) to the grip ring (24, Fig. 5; ¶ [0038]).
PNG
media_image1.png
456
753
media_image1.png
Greyscale
Image 1: Annotated Fig. 5 of Jarmon
Regarding Claim 3, Jarmon discloses the elongated barrel (12, Figs. 1-5) including the grip region (20, Figs. 1-5) is made from a single piece of material (¶ [0040]; the fingergrip area can be molded when initially molding the barrel and therefore the entire barrel will be made from a single piece of material).
Regarding Claim 6, Jarmon discloses the grip region (20, Figs. 1-5) further defines a raised pattern (gripping structure 22, Fig. 3; ¶ [0033-0036]) molded into an outer surface of the grip region (20, Figs. 1-5) for facilitating gripping of the tampon applicator (10, Figs. 1-5; ¶ [0033-0036]).
Regarding Claim 13, Jarmon discloses the tampon applicator (10, Figs. 1-5) is entirely formed from a bio-based polymer (¶ [0023, 0026]).
Regarding Claim 15, Jarmon discloses the elongated barrel (12, Fig. 1) includes at least two petals (26, Figs. 1-5; ¶ [0022]) each having a base (see Image 1) extending longitudinally of the barrel (12, Figs. 1-5) to a tip (see Image 1) of the petal (26, Figs. 1-5) wherein the petal tips define the inner end (28, Figs. 1-5) of the barrel (12, Figs. 1-5; ¶ [0022]), the petals (26, Figs. 1-5) being configured relative to each other and to the barrel (12, Figs. 1-5) from a closed configuration in which the petals (26, Figs. 1-5) generally close the inner end (28, Figs. 1-5) of the barrel (12, Figs. 1-5) and an open position in which the petals (26, Figs. 1-5) are moved generally transversely outward to form an exit opening at the inner end (28, Figs. 1-5) of the barrel (12, Figs. 1-5) upon movement of the plunger (16, Figs. 1-5) to expel a tampon (14, Figs. 1-5) from the barrel (12, Figs. 1-5) at the inner end (28, Figs. 1-5; ¶ [0022, 0039]).
Regarding Claim 18, Jarmon discloses a tampon product comprising a tampon applicator (10, Figs. 1-5) as defined in Claim 1, and further comprising a tampon pledget (14, Figs. 1-5) contained within the elongated barrel (12, Figs. 1-5; ¶ [0022]).
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 2 and 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Jarmon et al (US 2005/0177091).
Regarding Claim 2, Jarmon further discloses the elongated barrel defines a longitudinal axis (see Image 1) and wherein the grip region (20, Fig. 5) gradually tapers at an angle with respect to the longitudinal axis (as seen in Fig. 5).
Jarmon is silent whether the taper angle is from about 0.5 to about 5 degrees.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to cause the device of Jarmon to have a grip region taper angle from about 0.5 to about 5 degrees since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 SPQ 232 (1984). In the instant case, the device of Jarmon would not operate differently with a grip region taper angle from about 0.5 to about 5 degrees and since the grip region would still be tapered the device would function appropriately with the claimed taper angle. Further, applicant places no criticality on the range claimed, indicating simply that the grip region taper angle “can” be within the claimed ranges (¶ [0008] of Applicant’s published application).
Regarding Claim 5, Jarmon further discloses the elongated barrel (12, Figs. 1-5) defines a longitudinal axis (see Image 1) and wherein the grip ring (34, Fig. 5) flares outwardly from the grip region (20, Fig. 5).
Jarmon is silent whether the flare angle is from about 7 to 17 degrees.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to cause the device of Jarmon to have a grip ring with a flare angle from about 7 to about 17 degrees since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 SPQ 232 (1984). In the instant case, the device of Jarmon would not operate differently with a grip ring flare angle from about 7 to about 17 degrees and since the grip ring would still be flared the device would function appropriately with the claimed grip ring flare angle. Further, applicant places no criticality on the range claimed, indicating simply that the grip ring flare angle “can” be within the claimed ranges (¶ [0010] of Applicant’s published application).
Claim(s) 4 and 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Jarmon et al (US 2005/0177091) in view of Edgett et al (US 9192522).
Regarding Claims 4 and 17, Jarmon does not specifically state the elongated barrel including the grip region is made entirely from a single layer of the same polymer composition, and where the polymer composition is an elastomer.
Edgett teaches a tampon assembly, thus being in the same field of endeavor, where the elongated barrel (14, Fig. 1) including the grip region (located at second end 22, Fig. 1) is made entirely from a single layer of the same polymer composition, where the polymer composition is an elastomer (Col. 5 line 62 – Col. 6 line 8; Claim 39). This allows the applicator to be made of a soft resin that is more preferred by consumers, and simplifies manufacturing by only requiring one layer of material (Col. 5 line 62 – Col. 6 line 8; Claim 39).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the elongated barrel and grip region of Jarmon to be made entirely from a single layer of the same polymer composition, where the polymer composition is an elastomer, as taught by Edgett, to allow the applicator to be made of a soft resin that is more preferred by consumers and simplifies manufacturing by only requiring one layer of material (as motivated by Edgett Col. 5 line 62 – Col. 6 line 8 as Claim 39).
Claim(s) 7-9, 11, 12, and 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Jarmon et al (US 2005/0177091) in view of Mastalish et al (US 2012/0204410).
Regarding Claim 11, Jarmon further discloses the plunger (16, Figs. 1-5) has a finger-contacting end, a tampon-contacting end, and an elongated portion therebetween (as seen in Fig. 5).
Jarmon is silent whether the plunger further includes a finger flare on the finger-contacting end and a tampon flare on the tampon-contacting end, the finger flare, the tampon flare, and the elongated portion all having a thickness and wherein the thickness of the finger flare is less than the thickness of the elongated portion.
Mastalish teaches a tampon applicator (21, Figs. 1 and 11), thus being in the same field of endeavor, with a plunger (27, Figs. 1 and 11) that has a finger-contacting end (65, Figs. 1 and 11), a tampon-contacting end (67, Figs. 1 and 11), and an elongated portion (103, Figs. 1 and 11) therebetween, the plunger (27, Figs. 1 and 11) further including a finger flare (69, Figs. 1 and 11) on the finger-contacting end (65, Figs. 1 and 11) and a tampon flare (89, Figs. 1 and 11) on the tampon-contacting end (67, Figs. 1 and 11), the finger flare (69, Figs. 1 and 11), the tampon flare (89, Figs. 1 and 11), and the elongated portion (103, Figs. 1 and 11) all having a thickness (¶ [0084]) and wherein the thickness of the finger flare (69, Figs. 1 and 11) is less than the thickness of the elongated portion (103, Figs. 1 and 11; ¶ [0084]).
Therefore, it would have been obvious to modify the plunger of Jarmon to include a finger flare on the finger-contacting end and a tampon flare on the tampon-contacting end, the finger flare, the tampon flare, and the elongated portion all having a thickenss, and wherein the thickness of the finger flare is less than the thickness of the elongated portion (as motivated by Mastalish ¶ [0084]). Mastalish shows that flare tampon applicators are well known in the art, and that having the thickness of the flared portion of the plunger be less than the thickness of the elongated portion of the plunger is also well known in the art (¶ [0084]).
Regarding Claims 7-9 and 12, Jarmon is silent regarding a plurality of internal ribs located in the grip region, the plurality of ribs defining a guide channel having an effective diameter and wherein the plurality of internal ribs having a leading end and a trailing end that extend along a longitudinal axis of the elongated barrel, wherein the internal ribs have a height and wherein the height of the internal ribs is greater at the leading end of the internal ribs than at the trailing end of the internal ribs, wherein the internal ribs gradually taper from the leading end to the trailing end, and wherein the tampon flare has an effective flare diameter that is larger than the effective diameter of the guide channel.
Mastalish teaches a plurality of internal ribs (71, Figs. 2, 3, 5, and 11) located in the grip region (41, Figs. 2, 3, 5, and 11), the plurality of ribs (71, Figs. 2, 3, 5, and 11) defining a guide channel (63, Figs. 2, 3, 5, and 11) having an effective diameter (73, Figs. 2, 3, 5, and 11; ¶ [0069]) and wherein the plurality of internal ribs (71, Figs. 2, 3, 5, and 11) have a leading end (93, Figs. 2, 3, 5, and 11) and a trailing end (95, Figs. 2, 3, 5, and 11) that extend along a longitudinal axis (17, Figs. 2, 3, 5, and 11) of the elongated barrel (23, Figs. 2, 3, 5, and 11), wherein the internal ribs (71, Figs. 2, 3, 5, and 11) have a height (75, Figs. 2, 3, 5, and 11) and wherein the height (75, Figs. 2, 3, 5, and 11) of the internal ribs (71, Figs. 2, 3, 5, and 11) is greater at the leading end (93, Figs. 2, 3, 5, and 11; ¶ [0073]) of the internal ribs (71, Figs. 2, 3, 5, and 11) than at the trailing end (95, Figs. 2, 3, 5, and 11) of the internal ribs (71, Figs. 2, 3, 5, and 11; ¶ [0073]), wherein the internal ribs (71, Figs. 2, 3, 5, and 11) gradually taper from the leading end (93, Figs. 2, 3, 5, and 11) to the trailing end (95, Figs. 2, 3, 5, and 11; ¶ [0073]), and wherein the tampon flare (89, Figs. 2, 3, 5, and 11) has an effective flare diameter (107, Figs. 2, 3, 5, and 11) that is larger than the effective diameter (73, Figs. 2, 3, 5, and 11) of the guide channel (63, Figs. 2, 3, 5, and 11). These structures ensure the stability of the plunger as it moves within the barrel (¶ [0069]).
Therefore, it would have been obvious to modify the tampon applicator of Jarmon to include a plurality of internal ribs located in the grip region, the plurality of ribs defining a guide channel having an effective diameter and wherein the plurality of internal ribs have a leading end and a trailing end that extend along a longitudinal axis of the elongated barrel, wherein the internal ribs have a height and wherein the height of the internal ribs is greater at the leading end of the internal ribs than at the trailing end of the internal ribs, wherein the internal ribs gradually taper from the leading end to the trailing end, and wherein the tampon flare has an effective flare diameter that is larger than the effective diameter of the guide channel, as taught by Mastalish, to allow for increased stability of the plunger as it moves within the barrel (as motivated by Mastalish ¶ [0069]).
Regarding Claim 16, Jarmon is silent whether the barrel includes 5 or 6 petals.
Mastalish teaches a tampon applicator with 5 petals (as shown in Fig. 1).
Therefore, it would have been obvious to modify the barrel of Jarmon to include 5 petals, as taught by Mastalish, who demonstrates that 5 petals is well known within the art of tampon applicators (as shown by Fig. 1).
Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Jarmon et al (US 2005/0177091) in view of Mastalish et al (US 2012/0204410) further in view of Gann et al (US 2010/0324468).
Regarding Claim 10, Jarmon/Mastalish is silent whether the applicator includes greater than 4 ribs.
Gann teaches a tampon applicator, thus being in the same field of endeavor, where greater than 4 internal ribs can be present (¶ [0023]) to further improve the stability of the plunger (¶ [0023]).
Therefore, it would have been obvious to modify the applicator of Jarmon/Mastalish to include greater than 4 ribs, as taught by Gann, to further improve the stability of the plunger (as motivated by Gann ¶ [0023]).
Claim(s) 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Jarmon et al (US 2005/0177091) in view of Nellenbach et al (US 2014/0155808).
Regarding Claim 14, Jarmon is silent whether the bio-based polymer comprises a polylactic acid, a polyhydroxyalkanoate, or mixtures thereof.
Nellenbach teaches a tampon applicator, thus being in the same field of endeavor, where the applicator can be constructed from molded cellulose, polylactic acid, polyhydroxyalkanoate, and mixtures thereof (¶ [0024]).
Therefore, it would have been obvious to modify the material of Jarmon to include a mixture of molded cellulose and polylactic acid and/or polyhydroxyalkanoate, as taught by Nellenbach, as Nellenbach indicates that these materials and combinations of these materials are all suitable for tampon applicators (¶ [0024]).
Claim(s) 19 and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Jarmon et al (US 2005/0177091) in view of Brecht (US 3015332).
Regarding Claims 19 and 20, Jarmon is silent whether the tampon product comprises a drawstring extending from the tampon pledget and through the plunger, and wherein the tampon pledget comprises cotton fibers.
Brecht teaches a tampon applicator, thus being in the same field of endeavor, with a drawstring extending from the tampon pledget and through the plunger, and wherein the tampon pledget comprises cotton fibers (Col. 3 lines 22-30). The use of cotton fibers for tampons and drawstrings extending from the tampon pledget through the plunger is a common feature of tampons, as shown by Brecht.
Therefore, it would have been obvious to modify the tampon of Jarmon to include a drawstring extending from the tampon pledget and through the plunger, and wherein the tampon pledget comprises cotton fibers, as taught by Brecht (Col. 3 lines 22-30). These features are well known within the art of tampons, as shown by Brecht.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jessica Arble whose telephone number is (571)272-0544. The examiner can normally be reached Mon - Fri 9 AM - 5 PM.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
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.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/JESSICA ARBLE/ Primary Examiner, Art Unit 3781
Prosecution Insights