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 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 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 1-20 are rejected under 35 U.S.C. 102(a) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Viens et al. US Patent Application Publication 2015/0351976.
As to claims 1-11, Viens teaches a fluid management layer 20 – where Viens teaches the secondary topsheet 20 serves to rapidly draw discharged body fluids through the topsheet and provides acquisition/distribution functions (para. 0050).
Viens teaches the fluid management layer 20 is an integrated carded nonwoven (para. 0050) having a caliper of greater than 0.20 mm per 10 gsm for a basis weight of between 40 gsm and about 75 gsm – where Viens teaches a caliper about 0.9mm to about 1.2 mm for a basis weight of about 55 gsm to about 75 gsm (para. 0056). Although the caliper is lower than what is recited in claim 1, the present invention teaches Samples 1-7 having basis weights ranging from 51.52 to 77.29 and a caliper of 0.54 to 0.93, with caliper factor (mm/10 gsm) ranging from 0.10 to 0.22 (Table 1). Viens teaches the secondary topsheet having a caliper of about 0.9 mm to about 1.2 mm for a basis weight of about 55 gsm to about 75 gsm and a caliper factor of about 0.9 mm to about 1.2 mm (Viens para. 0056). Thus, Viens teaches basis weights and calipers consistent with the present invention.
Viens does not specifically teach the determination of fibers by Material Compositional Analysis specified in the present disclosure. However, Viens does teach the fluid management layer 20 comprises a variety of fibers (paras. 0050, 0057) comprising the same fibers as the present invention as discussed below:
a plurality of absorbent fibers (Viens paras. 0057,0061) – the present invention teaches the fluid management layer may comprise from about 15-60% absorbent fibers (published application of present invention US 2025/0025354 para. 0047). Viens teaches absorbent fibers in amount of 10% to about 50% (para. 0061), which includes ranges taught in the present invention. Furthermore the absorbent fibers and shapes included in the present invention (US 2025/0025354 paras. 0057) are the same as taught in Viens (Viens para. 0062);
a plurality of stiffening fibers (Viens paras. 0057, 0058) – the present invention teaches the fluid management layer may comprise stiffening fibers in an amount of 15-60% (US 2025/0025354 para. 0049). Viens teaches stiffening fibers can form about 10% to about 50% by weight of the carded staple fiber nonwoven, which includes values in the same ranges (Viens para. 0057). The stiffening fibers of Viens have the same composition and physical structure (Viens paragraphs 0058-0060) as the stiffening fibers of the present invention (US 2025/0025354 paras. 0060-0061), and
a plurality of resilient fibers (Viens paras. 0057, 0064-0065) – where Viens teaches the filler fibers comprise the same fibers as the resilient fibers of the present invention (present invention US 2025/0025354 para. 0065-0067). The present invention teaches the fluid management layer may comprise resilient fibers in an amount of 20% to about 70% (present invention US 2025/0025354 para. 0048). Viens teaches resilient (filler) fibers with ranges including the ranges of the present invention (Viens para. 0064).
Viens teaches stiffening bicomponent fibers in the fluid management layer 20 (paras. 0057, 0059-0060) to provide stiffness and flexural rigidity and prevent or reduce bunching while maintaining comfort and a body fit (Viens para. 0053). Viens teaches the stiffening fibers can be polyethylene terephthalate (PET) fibers (para. 0058. Viens incorporates by reference WO 99/00098 (paras. 0059,0101) as disclosing suitable stiffening fibers that are side-by-side bi-component fibers (Veins para. 0059). Magnusson et al. WO 99/00098 teaches the bicomponent fibers comprising CoPET/PET fibers (page 8, lines 5-6), which are polyethylene terephthalate (PET) and a modified PET copolymer.
Viens/Magnusson further teaches a plurality of heat-formed bonds are present between adjacent stiffening fibers where Magnusson teaches the fluid acquisition/transfer layer further comprises thermoplastic bonding fibers 5, which may be of a one-component or bi- or multicomponent type. The bonding fibers 5 should have a lower melting point than the functional fibers, so that the fiber mixture can be heated to a temperature between the melting points of the bonding fibers and the functional fibers respectively, in order to bind the material. In this way, only the bonding fibers will melt, while the functional fibers are substantially unaffected by the heat treatment and will maintain their resiliency resulting in a more open and resilient material (Magnusson et al. WO 00/00098 page 5, lines 4-11).
Additionally with respect to claims 1-3, 8, 10, and 11, Viens does not teach total compression, total recovery values, and stain size. However, Viens teaches a carded nonwoven having the same fiber composition and basis weight as the present invention. The fibers comprising the fluid management layer of Viens have the same types of fibers with the fibers having the same structure and in the same amounts as the present invention. Therefore, it is reasonable to expect the fluid management layer 20 of Viens would perform in the same manner and have the same claimed properties as the present invention or in the alternative, one having ordinary skill in the art before the invention was originally filed would have been able to determine through routine experimentation the percentage of fibers necessary to provide the desired characteristics. The properties of a material are inherent to the material, thus, once the same composition is present the properties of the material will necessarily be present.
Additionally with respect to claims 4 and 5, Viens does not teach caliper decrease but does teach the layer is compression resistant and resilient (para. 0053). It would have been obvious to provide the claimed caliper decrease to maintain the permeability and capacity of the fluid management layer to improve acquisition and dryness for the absorbent article while in use as taught in Viens (para. 0053).
As to claim 6, Viens teaches the fluid management layer 20 has a basis weight of 30 gsm to about 150 gsm (para. 0054), which includes values within the claimed range of between about 40 gsm and about 75 gsm; and the nonwoven has density of 0.05 g/cc to about 0.10 g/cc (para. 0056), which includes the claimed range of between 0.20 g/cc to 0.080 g/cc.
As to claim 7, Viens teaches the fluid management layer has an air permeability of between about 100 m3/m2/min and about 500 m3/m2/min, which includes the claimed range of 200m3/m2/min to about 400 m3/m2/min (Viens Abstract).
As to claim 9, Viens further teaches a disposable absorbent article 10 comprising a topsheet 14, a backsheet 16, an absorbent core 18 disposed between the topsheet and the backsheet (para. 0032), and a fluid management layer 20 as described above between the topsheet and the absorbent core (paras. 0033, 0050).
As to claim 12, see the rejection of claim 1 supra. Additionally, claim 12 requires the resilient fibers comprise a first group of fibers comprising a first linear density and a second group of fibers comprising a second linear density, wherein the first linear density is from about 1 dtex to about 3 dtex and the second linear density is at least about 5 dtex. Viens incorporates by reference (Viens paras. 0058,0101), Schneider et al. USPN 7767598 as disclosing suitable stiffening fibers for utilization in the carded staple fiber nonwovens. Schneider teaches a liquid acquisition layer having a multitude of fibers, preferably in the form of a nonwoven material and a binder. Schneider teaches while a large variety of fibers and binders are suitable, it has been found that certain materials provide better recovery than other materials. Schneider teaches preferred fibers are PET fibers and the acquisition materials have been found to work best if a blend of different fibers is used. Schneider further teaches the first type of fiber will have 3-9 dtex, which is included in the claimed range of about 1 dtex to about 3 dtex; and the second type of fibers will have 8-12 dtex, which is included in the claimed range of at least about 5 dtex (Schneider col. 9, lines 45-66). While the dtex values for the first fiber taught in Schneider are higher than the claimed ranges, Schneider teaches the general condition of an acquisition layer having resilient fibers with different linear densities for the benefit of providing better recovery to the acquisition layer. (Schneider col. 9, lines 38-44). It would have been obvious to one having ordinary skill in the art before the invention was originally filed to provide the resilient fibers with a first and second group of fibers having different linear densities as taught in Schneider, since where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation, In re Aller et al. 105 USPQ 233.
As to claim 13, Viens does not teach total compression. However, Viens teaches a carded nonwoven having the same fiber composition and basis weight as the present invention. The fibers comprising the fluid management layer of Viens have the same types of fibers with the fibers having the same structure and in the same amounts as the present invention. Therefore, it is reasonable to expect the fluid management layer 20 of Viens would perform in the same manner and have the same claimed properties as the present invention or in the alternative, one having ordinary skill in the art before the invention was originally filed would have been able to determine through routine experimentation the percentage of fibers necessary to provide the desired characteristics. The properties of a material are inherent to the material, thus, once the same composition is present the properties of the material will necessarily be present.
As to claim 14, Viens teaches the nonwoven has density of 0.05 g/cc to about 0.10 g/cc (para. 0056), which includes the claimed range of less than or equal to 0.080 g/cc.
As to claim 15, the second linear density is from about 5 dtex to about 12 dtex – where Schneider teaches the second type of fibers will have 8-12 dtex (Schneider col. 9, lines 65-66).
As to claim 16, see the rejection of claims 1 and 12, supra. Additionally, claim 16 requires the integrated, carded, nonwoven have a basis weight of between about 40 gsm and about 75 gsm. Viens teaches the fluid management layer has a basis weight of about 30 gsm to about 150 gsm (para. 0054), which has values included in the claimed range. Additionally, Viens teaches the nonwoven has density of 0.05 g/cc to about 0.10 g/cc (para. 0056), which includes the claimed range of less than or equal to 0.080 g/cc.
As to claim 17, the first linear density is from about 1 dtex to about 5 dtex – where Schneider teaches the first type of fibers will have 3-9 dtex (Schneider col. 9, lines 63-65).
As to claim 18, the second linear density is at least about 7 dtex– where Schneider teaches the second type of fibers will have 8-12 dtex (Schneider col. 9, lines 65-66).
As to claim 19, Viens teaches the fluid management layer of claim 16, comprising from about 30% to about 60% by weight of resilient fibers – where Viens teaches the resilient (filler) fibers can form 1% to about 80%, by weight, of the carded staple fiber nonwoven (paras. 0057, 0064); and from about 20% to about 50% by weight of stiffening fibers – where Viens teaches the stiffening fibers can form about 15% to about 35%, by weight, of the carded staple fiber nonwoven. Viens teaches both resilient (filler) fibers and stiffening fibers have values included in the claimed ranges.
As to claim 20, Viens teaches the fluid management layer of claim 16, comprising from about 35% to about 50% by weight of resilient fibers – where Viens teaches the resilient (filler) fibers can form 1% to about 80%, by weight, of the carded staple fiber nonwoven (paras. 0057, 0064); and from about 25% to about 40% by weight of stiffening fibers – where Viens teaches the stiffening fibers can form about 15% to about 35%, by weight, of the carded staple fiber nonwoven. Viens teaches both resilient (filler) fibers and stiffening fibers have values included in the claimed ranges.
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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The 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/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1-11 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12,138146 in view of Viens et al. US 2015/0351976. 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 a specific type of bicomponent fibers having a sheath-core arrangement with a polyethylene terephthalate core and a polyethylene sheath. Viens teaches a resilient (filler) bicomponent fiber having a polyethylene sheath and polyethylene terephthalate core (Viens para. 0065). It would have been obvious to one having ordinary skill in the art before the invention was originally filed to provide the claimed sheath/core bicomponent fiber of Viens in the present invention, since both references are from the same field of endeavor and solve the same problem of providing permeability and sufficient void space for good liquid distribution and transport to the acquisition member (Viens para. 0060).
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Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Lindner et al. US Patent Application Publication 2018/0256773 is cited to show a nonwoven web having bi-component fibers comprising PET and co-polyethylene terephthalate. Hwang et al. US Patent Application Publication 2013/0261578 is cited to show an acquisition layer having mixed denier fibers.
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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/JACQUELINE F STEPHENS/ Primary Examiner, Art Unit 3781
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