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 .
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.
Claim 1, 14-21, are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1,7-9 13-17, of copending Application No. 18260546. Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claims are a “species” of the co-pending application and species anticipates genus.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Instant claim
Co-pending application 18260546
1, 22, 26
1
14
7
15
8
16
9
17
13
18
14
19
15
20
16
21
17
Allowable Subject Matter
Claims 1-26 are allowed once the double patenting rejection is obviated.
The instant claims require a rather generic absorbent article until the fasteners. As seen in applicant’s figure from the currently co-pending application 18260546 (from remarks filed December 18, 2025). The fastener element (125) has a base sheet (200) having an upper (201) and lower surface (202). The stems project from the upper surface (201) this creates a fastening area (203) and area free of fastening elements (208 and 209) on the base sheet (200). This base sheet is NOT the side sheet it is the actual sheet which the stems project off or are formed on. The closest prior art will be discussed below.
PNG
media_image1.png
310
736
media_image1.png
Greyscale
First closet prior of record: Gibbs US 2003/0109842 A1.
Gibbs teaches the bending stiffness if too great causes buckling and that the grip element (310, ie hook and loop) can be offset from the fastener tab to create a “pull tab” area for adjustments ([0049-50]). Gibbs fails to teach the base sheet from which the stems project off of has an area were the base sheet is free of fastener stems. Rather the stems extend the full length of the grip sheet (310) and fail to have an area free from stems on the grip sheet (310).
PNG
media_image2.png
300
352
media_image2.png
Greyscale
Gibbs fig 5
Going into the hook and loop art Provost US 7223314 has a space in-between sets of stems but the stem are grouped together and share a common base while the space between them is free from the base sheet as seen in figure 1D reproduced below.
PNG
media_image3.png
80
430
media_image3.png
Greyscale
For the sake of argument because the opposing material (i.e. the hooks and loops or stems fit together like a “zipper” and a space on the base layer to allow for this is necessary) the examiner understands applicant’s distance (or area free of fastening material to be significantly larger than the area commonly found between hooks or loop/ stems (or other fastening means) or at least 5mm as specified in claim 5, 22, and 26.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GABRIELLA E BURNETTE whose telephone number is (571)272-9574. The examiner can normally be reached M-S: 0830-1900 EST.
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, Rebecca Eisenberg can be reached at (571) 270-5879. 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.
/GABRIELLA E BURNETTE/ Examiner, Art Unit 3781 /REBECCA E EISENBERG/Supervisory Patent Examiner, Art Unit 3781
Prosecution Insights