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 (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.
Claims 1-18 are rejected under 35 U.S.C. 103 as being unpatentable over
Robles US Patent Application Publication 2013/0116646 in view of Noel et al. USPN 5304161.
As to claim 1, Robles teaches an absorbent article 10 having a longitudinal centerline L, a transverse centerline T and a central point C where the longitudinal centerline and the transverse centerline cross (Figure 1), comprising;
a liquid permeable topsheet14;
a liquid impermeable backsheet 16 joined to the topsheet 14 (paragraph 0038); and
an absorbent core 18 having an area disposed between the topsheet 14 and the backsheet 16 (Figure 2; paragraph 0038);
wherein the absorbent core 18 comprises a first absorbent core 40 comprising an upper surface 46 (paragraph 0063).
Robles teaches the absorbent core 18 can have additional features such as slits, slots, and apertures may be present in the upper (second) layer 30, bottom (first) layer 40, or both the upper and lower layers (paragraph 0044).
Note: Since Robles teaches the apertures may be present in the first and/or second layers, the description of the first layer 40 first and second areas are in accordance with the description of the second layer first and second areas as taught in the specification in paragraph 0065 and seen in Figures 1, 1C, and 4. Furthermore, Robles teaches while particular embodiments have been illustrated and described, it would be obvious to those skilled in the art that various other changes and modifications can be made without departing from the spirit and scope of the invention (para. 0086). Thus, it would obvious to use the apertured and non-apertured first and second area taught for layer 30 in Figs. 1, 1C, and 4 also or alternatively in the first layer 40.
The first (lower) layer 40 having no apertures depicts a first area 62, a continuous non-apertured area (Figs. 1 and 1C; similar to second layer 30 paras. 0044, 0065) and a second area 64, a non-continuous apertured area (Fig. 4; paras. 0044 and 0065), wherein the first area and the second area are horizontally arranged (Figures 1, 1C, and 4),
wherein the second area 64 is surrounded on at least one side by the first area 62, and
wherein the second area 64 is a void extending through the first absorbent core 40; and
a second absorbent core 30 having a periphery 66, wherein the first absorbent core 40 and the second absorbent core 40 are vertically arranged (Figure 2).
the second absorbent core 30 completely covers the second area of the first absorbent core 40. Robles teaches the second absorbent core 30 perimeter 66 overlaps with the first (lower) absorbent layer 40 (para. 0063). Robles teaches no greater than 10% -100% of the second (upper) absorbent core 30 perimeter 66 overlaps with the first (lower) absorbent core 40 (paragraph 0063), in the case of 100%, the second absorbent core 30 completely covers the second areas of the first absorbent core 40;
wherein the second absorbent core 30 comprises on or more holes 70 (Fig. 1C; paras. 0038 and 044);
wherein the second absorbent core 30 partially overlaps in its periphery 66 with the first area (non-apertured area 62) of the first absorbent core 40 (Fig. 1A; para. 0063);
wherein the first absorbent core 40 and the second absorbent core 30 have different compositions – where the second absorbent is an open celled foam (para. 0066) and the first absorbent 40 is a fibrous network including microfibers (para. 0048).
wherein the second absorbent core 30 comprises a first transverse end region 52 and an opposing second transverse end region 54 (Fig. 1C; para. 0038). Robles does not specifically teach the second area (void area 64) of the first absorbent core 40 extends from adjacent to the first transverse end region to adjacent to the second transverse end region of the second absorbent core 30. Noel teaches a multiple layer absorbent core having an absorbent core 42 comprising four layers as seen in Fig. 2 (col. 7, lines 45-57). Noel teaches the absorbent core comprises a first acquisition layer 46’, a first storage layer 48’, a second acquisition layer 46”, and a second storage layer 48” (col. 7, lines 51-57). Noel teaches the first storage layer 48’ has an aperture 50,52 (Fig. 2) for the benefit of providing a flow path through which exudates can flow to the underlying layers when the storage layers that lie above such layers become full (Noel col. 11, lines 19-25). Noel further teaches the core 42 can be sized and provided with different capacities to fit the use intended for the absorbent article (col. 10, lines 48-50). Thus, it would have been obvious to one having ordinary skill in the art before the invention was originally filed to modify Robles with a void in the absorbent second area that extends from end region of the second absorbent to the opposite end region of the second absorbent for the benefit of providing a flow path for fluids as taught in Noel.
As to claim 2, the first area of the first absorbent core 40 comprises superabsorbent polymer (para. 0049).
As to claim 3, the first area of the first absorbent 40 comprises a material chosen from creped cellulose wadding, fluffed cellulose fibers, wood pulp fibers, textile fibers, airlaid fibers, or polymeric fibers (Robles para. 0050).
As to claim 4, the second absorbent core 30 comprises an open celled foam (para. 0066).
As to claim 5, Robles/Noel teaches the open celled foam comprises polyurethane (Robles claim 7).
As to claim 6, the open celled foam comprises a High Internal Phase Emulsion (HIPE) foam (Robles para. 0066).
As to claim 7, the first absorbent core 40 comprises a plurality of laterally-oriented slots 72 (Figure 1; para. 0045).
As to claim 8, the first absorbent core 40 further comprises a third area having a higher absorption capacity than the first area of the first absorbent core – where Robles teaches additional features in the absorbent layers include slits, slots, apertures, and lateral stiffeners (para. 0044) which affect the absorption capacity of the core. For example, an area with slits would have a lower absorption capacity as compared to an adjacent area without slits.
As to claim 9, the first absorbent core 40 has a transverse axis T1 and the second absorbent core 30 has a transverse axis T2, and the transverse axis T1 of the first absorbent core 40 and the transverse axis T2 of the second absorbent core 30 are not consistent each other (Robles (Fig. 4; para. 0043).
As to claim 10, Robles teaches the second absorbent core 30 covers more than 20% of the upper surface of the first absorbent core 40 (para. 0063).
As to claim 11, the second absorbent core 30 is asymmetric relative to the transverse axis T2 of the second absorbent core 30 (Robles Figure 1; paras. 0020, 0064, claim 4).
As to claim 12, the first absorbent core 40 is symmetric relative to the transverse axis T1 of the first absorbent core – where Robles teaches the first absorbent core has a lower layer section one 56 and lower layer section two 58, which may be equal in surface area (Robles Figures 1, 1B; para. 0047).
As to claim 13, the second absorbent core 30 comprises an upper surface 36 and a lower surface 38 opposite the upper surface, wherein the upper surface 36 of the second absorbent core 30 structure is in direct contact with a lower surface 35 of the topsheet 14 (Robles para. 0075; Figure 2).
As to claim 14, the lower surface 38 of the second absorbent core 30 is in direct contact with the upper surface 46 of the first absorbent core 40 (Robles para. 0075; Figure 2).
As to claim 15, the absorbent article of claim 1, further comprising a secondary topsheet disposed between the topsheet and the absorbent core – where Robles teaches secondary topsheets, often called acquisition and/or distribution layers can be bonded to the topsheet (para. 0040). Robles teaches a fluid acquisition layer between the topsheet 14 and the absorbent core 18 (Robles para. 0039)
As to claim 16, Robles/Noel teach the topsheet is chosen from a polymeric film, a nonwoven, a woven fabric, a paper web, a tissue paper web, or a cellulosic web (Noel col. 8, lines 52-59).
As to claim 17, Robles/Noel teach the foam has a thickness of from about 0.8 mm to about 3.5 mm (Robles para. 0068).
As to claim 18, Robles/Noel teach the one or more holes 70 of the second absorbent core 30 are positioned in a central region of the absorbent article – where Robles teaches the hole 70 are positioned where the longitudinal axis L2 of the absorbent core upper layer 30 and the absorbent article longitudinal axis L meet at Central point C2 (Robles Fig. 1C; para. 0043). The second area of the first absorbent core 40 is a void that extends from one end region of the second absorbent core to an opposite end region of the second absorbent core as discussed with respect to Noel, in the rejection of claim 1 above. Thus, it is reasonable to assume the one or more holes 70 are positioned above the void, second area of the first absorbent core as claimed.
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 and 7-14 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 2, 4, 5, 7-9, and 11-14 of U.S. Patent No. 12,156,797 Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of U.S. Patent No. 12,156,797 contain each and every limitation of the aforementioned claims 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 11 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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/JACQUELINE F STEPHENS/ Primary Examiner, Art Unit 3781
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