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 .
Response to Amendment
An amendment was filed on 07/20/2026. Claims 1, 3, 5, 8, 13-15, 18, and 20 have been amended. Currently, claims 1-20 are pending and are being examined on the merits.
Response to Arguments
Applicant’s arguments with respect to claims 1, 8, 15, and 20 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. Notably, newly cited Rogers (US 20220331176), Ren (US 20200392658), and Tange (US 20180271720) are utilized to teach the various new issue claim limitations.
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.
Claims 1-7 are rejected under 35 U.S.C. 103 as being unpatentable over 35 U.S.C. 103 as being unpatentable over Saevecke (US 20190328587) in view of Rogers (US 20220331176).
Regarding claim 1, Saevecke discloses a package comprising an interior space and an exterior surface (paragraph 0081 describes plurality of articles may be packaged);
a plurality of disposable feminine hygiene pads disposed within the interior space of the package (paragraph 0081, with paragraph 0001 describing the invention relating to feminine pads), each of the disposable feminine hygiene pads comprising a topsheet, a backsheet, and an absorbent core structure disposed between the topsheet and the backsheet (fig. 2, topsheet 24, backsheet 25, and an absorbent core comprising absorbent material 60, core wrap 16, 16’, and acquisition later 52), wherein the absorbent core structure comprises an upper nonwoven layer (fig. 2, acquisition later 52, paragraph 0027 describes acquisition layer material typically a nonwoven), a lower nonwoven layer (fig. 2, core wrap with top side 16 and bottom side 16’, paragraph 004 describes it as a nonwoven), and an inner core layer comprising cellulosic fibers (fig. 2, absorbent material 60, with paragraph 0046 describing 25-70% by weight of cellulose fibers), wherein at least a portion of the inner core layer is disposed between the upper nonwoven layer and the lower nonwoven layer (fig. 2, absorbent material 60 in between core wrap bottom side 16’ and acquisition layer 52),
but is silent to wherein the disposable feminine hygiene pads exhibit an Average In-Bag Pad Density of about 0.20 g/cm3 or less, and a % Caliper Recovery at 2 minutes of at least 4%, as measured according to the In Bag Compression Recovery Method, and wherein the upper nonwoven layer comprises a blend of staple fibers, the blend of staple fibers comprising less than or equal to 30% of the fibers having a fiber size of 1.3 DTex.
However, Rogers teaches a fiber composition (abstract) comprising a blend of staple fibers (paragraph 0079, “the cotton and viscose had a fiber length of about 38 mm”, which in light of the instant specification is in line for staple fiber length), the blend of staple fibers comprising less than or equal to 30% of the fibers having a fiber size of 1.3 DTex (paragraph 0079, “5% viscose (1.3 dtex))”
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 to modify the device disclosed in Saevecke such that the upper nonwoven layer comprises a blend of staple fibers, the blend of staple fibers comprising less than or equal to 30% of the fibers having a fiber size of 1.3 DTex, as taught by Rodgers, for the purpose of providing a comparable material for the acquisition/distribution layer that is more environmentally responsible (see Rodgers, paragraph 0004)
Moreover, It is the Office’s position that the testing method for a material or structural property does not impart a patentable weight. The property is attributed to the material and structure, not the testing method. As such, a reference does not need to recite using the bag compression recovery method to determine the average in-bag pad density of 0.20 g/cm3 or less and a % Caliper Recovery at 2 minutes of at least 4%. Moreover, where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). In this instance, because the structure of the feminine hygiene product mirrors that of claim 1, it necessarily has the same properties.
Regarding claim 2, Saevecke is silent to wherein the disposable feminine hygiene pads exhibit an Average In-Bag Pad Density of from about 0.07 g/cm3 to about 0.17 g/cm3, as measured according to the In Bag Compression Recovery Method.
However, It is the Office’s position that the testing method for a material or structural property does not impart a patentable weight. The property is attributed to the material and structure, not the testing method. As such, a reference does not need to recite using the bag compression recovery method to determine the Average In-Bag Pad Density of from about 0.07 g/cm3 to about 0.17 g/cm3. Moreover, where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). In this instance, because the structure of the feminine hygiene product mirrors that of claim 1, it necessarily has the same properties.
Regarding claim 3, Saevecke is silent to wherein the disposable feminine hygiene pads exhibit a % Caliper Recovery at 2 minutes of at least 10% as measured according to the In Bag compression Recovery Method.
However, It is the Office’s position that the testing method for a material or structural property does not impart a patentable weight. The property is attributed to the material and structure, not the testing method. As such, a reference does not need to recite using the bag compression recovery method to determine the % caliper recovery at 2 minutes of at least 10%.
Moreover, where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). In this instance, because the structure of the feminine hygiene product mirrors that of claim 1, it necessarily has the same properties.
Regarding claim 4, Saevecke does not explicitly teach wherein the inner core layer comprises from about 50% to about 85% cellulosic fibers, by weight of the inner core layer.
However, Saevecke teaches wherein the absorbent material may comprise from 25-70% by weight of cellulosic fibers (paragraph 0046).
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 device disclosed in Saevecke such that the inner core layer comprises from about 50% to about 85% cellulosic fibers, by weight of the inner core layer, since applicant appears to have placed no criticality on the claimed range (paragraph 0106 describes the inner core comprising cellulosic fibers in multiple acceptable ranges), and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding claim 5, Saevecke does not explicitly teach wherein the inner core layer further comprises from about 15% to about 50% superabsorbent particle, by weight of the inner core layer.
However, Saevecke teaches wherein the absorbent material may comprise 30-75% of superabsorbent particles (paragraph 0046).
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 device disclosed in Saevecke such that the inner core layer further comprises from about 15% to about 50% superabsorbent particle, by weight of the inner core layer, as applicant appears to have placed no criticality on the claimed range (paragraph 0106 gives multiple acceptable ranges for the amount of superabsorbent particles), and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding claim 6, Saevecke discloses wherein the upper nonwoven layer has a basis weight of from about 30 gsm to about 85 gsm (fig. 2, acquisition layer 54, with paragraph 0028 describing the web having a basis weight of 30-80 gsm).
Regarding claim 7, Saevecke does not explicitly teach wherein the lower nonwoven layer has a basis weight of from about 7 gsm to about 40 gsm.
However, Saevecke teaches wherein the lower nonwoven layer has a basis weight of less than 12 gsm (paragraph 0044 describing core wrap material having a basis weight of 12 gsm or less).
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 device disclosed in Saevecke such that the lower nonwoven layer has a basis weight of from about 7 gsm to about 40 gsm, since applicant appears to have placed no criticality on the claimed ranges, and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Claims 8-10, and 13-14 are rejected under 35 U.S.C. 103 as being unpatentable over Saevecke in view of Ren (US 20200392658).
Regarding claim 8, Saevecke discloses A feminine hygiene product (paragraph 0001) comprising:
a package comprising an interior space and an exterior surface (paragraph 0081 describes packages as a cardboard box, having intrinsically an interior space and exterior surface;
a plurality of disposable feminine hygiene pads disposed within the interior space of the package (paragraph 0081), each of the disposable feminine hygiene pads comprising a topsheet, a backsheet, and an absorbent core structure disposed between the topsheet and the backsheet (fig. 2, topsheet 24, backsheet 25, and an absorbent core comprising absorbent material 60, core wrap 16, 16’, and acquisition later 52),
the absorbent core structure comprising an upper nonwoven layer (54) comprising polymer fibers and having a basis weight of from about 30 gsm to about 85 gsm (fig. 2, acquisition layer 54, with paragraph 0028 describing the web having a basis weight of 30-80 gsm, paragraph 0027 describes acquisition material as a sheet of fibers, with paragraph 0029 describing use of PET staple fibers), a lower nonwoven layer comprising polymer fibers (fig. 2, core wrap with top 16 and bottom 16’, paragraph 0054 describes multiple polymer fibers suitable for use), and an inner core layer comprising a mixture of cellulosic fibers and superabsorbent particles (paragraph 0043 describes absorbent material 60 with 40-70% by weight of Superabsorbent polymers, the rest being cellulose and/or synthetic fibers), wherein at least a portion of the inner core layer is disposed between the upper nonwoven layer and the lower nonwoven layer (fig. 2 shows absorbent material 60 between wrap 16, 16’ and acquisition layer 54);
Saevecke does not explicitly teach wherein the lower nonwoven layer has a basis weight of from about 7 gsm to about 40 gsm, and is silent to wherein the feminine hygiene pads exhibit an Average In-Bag Pad Density of 0.20 g/cm3 or less, measured according to the In Bag Compression Recovery Method, and wherein the upper nonwoven layer comprises fibers having a staple length of form about 10 mm to about 100 mm and a fiber size of from about 1.3 DTex to about 10.0 DTex.
However, Saevecke teaches wherein the lower nonwoven layer has a basis weight of less than 12 gsm (paragraph 0044 describing core wrap material having a basis weight of 12 gsm or less).
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 device disclosed in Saevecke such that the lower nonwoven layer has a basis weight of from about 7 gsm to about 40 gsm, since applicant appears to have placed no criticality on the claimed ranges, and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Saevecke is silent to wherein the feminine hygiene pads exhibit an Average In-Bag Pad Density of 0.20 g/cm3 or less, measured according to the In Bag Compression Recovery Method, and wherein the upper nonwoven layer comprises fibers having a staple length of form about 10 mm to about 100 mm and a fiber size of from about 1.3 DTex to about 10.0 DTex
However, Ren teaches an airlaid composite sheet material (abstract) wherein fluid acquisition layer includes fibers with an average length of 38-51 mm and a fiber size of 4.3 dtex (paragraph 0078).
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 device disclosed in Saevecke such that the upper nonwoven layer comprises fibers having a staple length of from about 10 mm to about 100 mm and a fiber size of from about 1.3 DTex to about 10.0 DTex, as taught by Ren, for the purpose of providing a suitable structure that can improve fluid distribution through the acquisition/distribution layer and prevent prolonged exposure of the skin of the wearer to the fluid (see Ren, paragraph 0005).Moreover, it is the Office’s position that the testing method for a material or structural property does not impart a patentable weight. The property is attributed to the material and structure, not the testing method. As such, a reference does not need to recite using the bag compression recovery method to determine the average in-bag pad density of 0.20 g/cm3 or less. Moreover, where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). In this instance, because the structure of the feminine hygiene product mirrors that of claim 8, it necessarily has the same properties.
Regarding claim 9, Saevecke is silent to wherein the disposable feminine hygiene pads exhibit a % Caliper Recovery at 4 hours of from about 4% to about 35% as measured according to the In Bag Compression Recovery Method.
However, It is the Office’s position that the testing method for a material or structural property does not impart a patentable weight. The property is attributed to the material and structure, not the testing method. As such, a reference does not need to recite using the bag compression recovery method to determine % caliper recovery at 4 hours. Moreover, where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). In this instance, because the structure of the feminine hygiene product mirrors that of claim 8, it necessarily has the same properties.
Regarding claim 10, Saevecke discloses wherein the package comprises a package material selected from the group consisting of a polymer film, a paper material, carton board, and combinations thereof (“paragraph 0081, “the package may be for example a plastic bag or a cardboard box”, wherein cardboard is considered to be a paper material).
Regarding claim 13, Saevecke is silent to wherein the feminine hygiene pads exhibit a CD Dry Bending Stiffness between about 7.0 N*mm2 to about 30 N*mm2 as measured according to the Wet and Dry CD and MD 3 Point Bend Method.
However, It is the Office’s position that the testing method for a material or structural property does not impart a patentable weight. The property is attributed to the material and structure, not the testing method. As such, a reference does not need to recite using the Wet and Dry CD and MD 3 Point Bend Method to determine a CD Dry Bending Stiffness. Moreover, where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). In this instance, because the structure of the feminine hygiene product mirrors that of claim 8, it necessarily has the same properties.
Regarding claim 14, Saevecke is silent to wherein the feminine hygiene pads exhibit a 5th Cycle Wet % Recovery of between about 29% and about 40% as measured according to the Wet and Dry Bunched Compression Method.
However, It is the Office’s position that the testing method for a material or structural property does not impart a patentable weight. The property is attributed to the material and structure, not the testing method. As such, a reference does not need to recite using the Wet and Dry Bunched Compression Method to determine a 5th Cycle Wet % Recovery. Moreover, where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). In this instance, because the structure of the feminine hygiene product mirrors that of claim 8, it necessarily has the same properties.
Claims 11-12 are rejected under 35 U.S.C. 103 as being unpatentable over Saevecke in view of Ren, and further in view of Venturino (EP 1637108).
Regarding claim 11, Saevecke is silent to wherein the inner core layer comprises from about 125 gsm to about 350 gsm cellulosic fibers.
However, Venturino teaches wherein an absorbent system comprising 135 gsm cellulosic fibers (“The absorbent layer that is directly underneath the cover consists of wetlaid tissue carriers (17 grams per square meter basis weight, produced by Cellu Tisue Holdings Inc., East Hartford Ct.) on both faces with a mixture of wood pulp, polyester fibers and Sumitomo SA70 SAP disposed between the layers. The pulp is bleached softwood pulp, produced by a kraft process. Approximately 20% of the pulp has been mercerized. The total composite has a basis weight of 250 gsm and contains 40% superabsorbent (Sumitomo SA70) and 6% polyester staple fibers”, with 54% remaining for the wood pulp, leading to 135 gsm cellulosic fibers).
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 device disclosed in Saevecke such that the inner core layer comprises from about 125 gsm to about 350 gsm cellulosic fibers, for the purpose of providing a suitable structure that contributes to an article that is drapeable and also possesses the absorbency attributes required (see Venturino, paragraph 0007)
Regarding claim 12, Saevecke is silent to wherein the inner core layer comprises from about 20 gsm to about 125 gsm superabsorbent particles
However, Venturino teaches wherein the inner core layer comprises 100 gsm superabsorbent particles (“The total composite has a basis weight of 250 gsm and contains 40% superabsorbent”, which leads to 100 gsm of superabsorbent).
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 device disclosed in Saevecke such that wherein the inner core layer comprises from about 20 gsm to about 125 gsm superabsorbent particles, as taught by Venturino, for the purpose of providing a suitable structure that contributes to an article that is drapeable and also possesses the absorbency attributes required (see Venturino, paragraph 0007)
Claims 15-19 are rejected under 35 U.S.C. 103 as being unpatentable over Saevecke in view of Ren, and further in view of Tange (US 20180271720).
Regarding claim 15, Saevecke discloses a feminine hygiene product (paragraph 0001) comprising:
a package comprising an interior space and an exterior surface (paragraph 0081 describes packages as a cardboard box, having intrinsically an interior space and exterior surface);
a plurality of disposable feminine hygiene pads disposed within the interior space of the package (paragraph 0081), each of the disposable feminine hygiene pads comprising a topsheet, a backsheet, and an absorbent core structure disposed between the topsheet and the backsheet (fig. 2, topsheet 24, backsheet 25, and an absorbent core comprising absorbent material 60, core wrap 16, 16’, and acquisition later 52), the absorbent core structure comprising an upper nonwoven layer comprising polymer fibers and having a basis weight of from about 30 gsm to about 85 gsm (fig. 2, acquisition layer 54, with paragraph 0028 describing the web having a basis weight of 30-80 gsm, paragraph 0027 describes acquisition material as a sheet of fibers, with paragraph 0029 describing use of PET staple fibers), a lower nonwoven layer comprising polymer fibers (fig. 2, core wrap with top 16 and bottom 16’, paragraph 0054 describes multiple polymer fibers suitable for use), wherein at least a portion of the inner core layer is disposed between the upper nonwoven layer and the lower nonwoven layer (fig. 2 shows absorbent material 60 between wrap 16, 16’ and acquisition layer 54);
but does not explicitly teach an inner core layer comprising from about 50% to about 85% cellulosic fibers, by weight of the inner core layer, and from about 15% to about 50% superabsorbent particle, by weight of the inner core layer, wherein the feminine hygiene pads exhibit a % Caliper Recovery at 2 minutes of from about 4% to about 35%, as measured according to the In Bag Compression Recovery Method, wherein the upper nonwoven layer comprises a blend of fibers, and wherein at least a portion of the fibers have a fiber size of from about 2.0 DTex to about 10 DTex, and wherein the lower nonwoven layer comprises a blend of fibers, and wherein at least a portion of the fibers have a fiber size from about 1.3 DTex to about 5.0 DTex.
However, Saevecke teaches wherein the absorbent material may comprise from 25-70% by weight of cellulosic fibers (paragraph 0046), wherein the absorbent material may comprise 30-75% of superabsorbent particles (paragraph 0046).
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 device disclosed in Saevecke such that the inner core layer comprises from about 50% to about 85% cellulosic fibers, by weight of the inner core layer, and from about 15% to about 50% superabsorbent particle, by weight of the inner core layer, since applicant appears to have placed no criticality on the claimed range (paragraph 0106 describes the inner core comprising cellulosic fibers and superabsorbent polymer in multiple acceptable ranges), and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Saevecke does not explicitly teach wherein the feminine hygiene pads exhibit a % Caliper Recovery at 2 minutes of from about 4% to about 35%, as measured according to the In Bag Compression Recovery Method, wherein the upper nonwoven layer comprises a blend of fibers, and wherein at least a portion of the fibers have a fiber size of from about 2.0 DTex to about 10 DTex, and wherein the lower nonwoven layer comprises a blend of fibers, and wherein at least a portion of the fibers have a fiber size from about 1.3 DTex to about 5.0 DTex.
However, Ren teaches an airlaid composite sheet material (abstract) wherein fluid acquisition layer includes fibers with an average length of 38-51 mm and a fiber size of 4.3 dtex (paragraph 0078).
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 device disclosed in Saevecke wherein the upper nonwoven layer comprises a blend of fibers, and wherein at least a portion of the fibers have a fiber size of from about 2.0 DTex to about 10 DTex, as taught by Ren, for the purpose of providing a suitable structure that can improve fluid distribution through the acquisition/distribution layer and prevent prolonged exposure of the skin of the wearer to the fluid (see Ren, paragraph 0005).
Saevecke, as modified by Ren, does not teach wherein the feminine hygiene pads exhibit a % Caliper Recovery at 2 minutes of from about 4% to about 35%, as measured according to the In Bag Compression Recovery Method, and wherein the lower nonwoven layer comprises a blend of fibers, and wherein at least a portion of the fibers have a fiber size from about 1.3 DTex to about 5.0 DTex.
However, Tange teaches a core wrapping sheet with fibers having a fiber size of 1.7 dtex (paragraph 0164).
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 device disclosed in Saevecke such that the lower nonwoven layer comprises a blend of fibers, and wherein at least a portion of the fibers have a fiber size from about 1.3 DTex to about 5.0 DTex, as taught by Tange, for the purpose of providing a suitable structure that assists in transferring liquid in a thickness direction to better spread out fluid to the absorbent core (see Tange, paragraph 0006 and 0028)
Moreover, It is the Office’s position that the testing method for a material or structural property does not impart a patentable weight. The property is attributed to the material and structure, not the testing method. As such, a reference does not need to recite using the bag compression recovery method to determine a % Caliper Recovery at 2 minutes of at least 4%. Moreover, where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). In this instance, because the structure of the feminine hygiene product mirrors that of claim 15, it necessarily has the same properties.
Regarding claim 16, Saevecke is silent to wherein the feminine hygiene pads exhibit an Average In-Bag Pad Caliper of from about 2.0 mm to about 5.5 mm, as measured according to the In Bag Compression Recovery Method.
However, It is the Office’s position that the testing method for a material or structural property does not impart a patentable weight. The property is attributed to the material and structure, not the testing method. As such, a reference does not need to recite using the bag compression recovery method to determine an Average In-Bag Pad Caliper of from about 2.0 mm to about 5.5 mm. Moreover, where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). In this instance, because the structure of the feminine hygiene product mirrors that of claim 15, it necessarily has the same properties.
Regarding claim 17, Saevecke is silent to wherein the feminine hygiene pads exhibit an Average Out-of-Bag Pad Caliper at 2 minutes of from about 2.0 to about 6.0 mm, as measured according to the In Bag Compression Recovery Method.
However, It is the Office’s position that the testing method for a material or structural property does not impart a patentable weight. The property is attributed to the material and structure, not the testing method. As such, a reference does not need to recite using the In Bag Compression Recovery Method to determine an Average Out-of-Bag Pad Caliper at 2 minutes of from about 2.0 to about 6.0 mm. Moreover, where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). In this instance, because the structure of the feminine hygiene product mirrors that of claim 15, it necessarily has the same properties.
Regarding claim 18, Saevecke is silent to wherein the feminine hygiene pads exhibit an Average In-Bag Pad Density of from about 0.07 g/cm3 to about 0.20 g/cm3 as measured according to the In Bag Compression Recovery Method.
However, It is the Office’s position that the testing method for a material or structural property does not impart a patentable weight. The property is attributed to the material and structure, not the testing method. As such, a reference does not need to recite using the bag compression recovery method to determine the average in-bag pad density of 0.20 g/cm3. Moreover, where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). In this instance, because the structure of the feminine hygiene product mirrors that of claim 15, it necessarily has the same properties.
Regarding claim 19, Saevecke is silent to wherein the feminine hygiene pads exhibit an Average Out-of-Bag Pad Density of from about 0.06 g/cm3 to about 0.16 g/cm3 at 2 minutes, as measured according to the In Bag Compression Recovery Method.
However, It is the Office’s position that the testing method for a material or structural property does not impart a patentable weight. The property is attributed to the material and structure, not the testing method. As such, a reference does not need to recite using the In Bag Compression Recovery Method to determine an Average Out-of-Bag Pad Density of from about 0.06 g/cm3 to about 0.16 g/cm3. Moreover, where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). In this instance, because the structure of the feminine hygiene product mirrors that of claim 15, it necessarily has the same properties.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Saevecke in view of Ferrer (US 20150182387) and Ren, with Weisman (WO 2017023656) being used as evidence and is cited within Saevecke.
Regarding claim 20, Saevecke discloses A process for packaging a plurality of disposable feminine hygiene pads (paragraph 0081, with paragraph 0001 describing the articles relating to feminine pads), the process comprising:
providing a plurality of disposable feminine hygiene pads (paragraph 0081), each of the disposable feminine hygiene pads comprising a topsheet, a backsheet, and an absorbent core structure disposed between the topsheet and the backsheet (fig. 2, topsheet 24, backsheet 25, and an absorbent core comprising absorbent material 60, core wrap 16, 16’, and acquisition later 52), the absorbent core structure comprising an upper nonwoven layer comprising polymer fibers and having a basis weight of from about 30 gsm to about 85 gsm (fig. 2, acquisition layer 54, with paragraph 0028 describing the web having a basis weight of 30-80 gsm, paragraph 0027 describes acquisition material as a sheet of fibers, with paragraph 0029 describing use of PET staple fibers), a lower nonwoven layer comprising polymer fibers (fig. 2, core wrap with top 16 and bottom 16’, paragraph 0054 describes multiple polymer fibers suitable for use), and an inner core layer comprising cellulosic fibers and superabsorbent particles (paragraph 0043 describes absorbent material 60 with 40-70% by weight of Superabsorbent polymers, the rest being cellulose and/or synthetic fibers), wherein at least a portion of the inner core layer is disposed between the upper nonwoven layer and the lower nonwoven layer (fig. 2, absorbent material 60 in between core wrap bottom side 16’ and acquisition layer 52),);
folding each disposable feminine hygiene pad of the plurality of disposable feminine hygiene pads to form a plurality of folded disposable feminine hygiene pads (paragraph 0081;
arranging the plurality of folded disposable feminine hygiene pads to form a stack of folded disposable feminine hygiene pads (paragraph 0082 describes an In-Bag Stack Height, thus implying that the pads are stacked);
compressing the stack of folded disposable feminine hygiene pads along a compression axis to form a compressed stack of folded disposable feminine hygiene pads (paragraph 0081);
placing the compressed stack of folded disposable feminine hygiene pads in an interior space of a package (paragraph 0081 describes articles being packaged for sale),
Saevecke does not explicitly state the lower nonwoven layer having a basis weight of from about 7 gsm to about 40 gsm, and is silent to wherein the compressed stack of folded disposable feminine hygiene pads is placed in the interior space of the package such that the compression axis of the stack of folded disposable feminine hygiene pads is oriented substantially along the width dimension of the package; and closing the package such that the folded disposable feminine hygiene pads exhibit an In-Bag Folded Caliper from about 7.0 to about 15.0 mm, and such that upon removal from the package, the disposable feminine hygiene pads exhibit a % Caliper Recovery at 2 minutes of at least 4%, as measured according to the In Bag Compression Recovery Method, wherein the upper nonwoven layer comprises bicomponent fibers comprising polyethylene and polyethylene terephthalate in a sheath-core configuration, and wherein the polyethylene form the sheath.
However, Saevecke teaches wherein the lower nonwoven layer has a basis weight of less than 12 gsm (paragraph 0044 describing core wrap material having a basis weight of 12 gsm or less).
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 device disclosed in Saevecke such that the lower nonwoven layer has a basis weight of from about 7 gsm to about 40 gsm, since applicant appears to have placed no criticality on the claimed ranges, and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Saevecke is silent to wherein the compressed stack of folded disposable feminine hygiene pads is placed in the interior space of the package such that the compression axis of the stack of folded disposable feminine hygiene pads is oriented substantially along the width dimension of the package; and closing the package such that the folded disposable feminine hygiene pads exhibit an In-Bag Folded Caliper from about 7.0 to about 15.0 mm, and such that upon removal from the package, the disposable feminine hygiene pads exhibit a % Caliper Recovery at 2 minutes of at least 4%, as measured according to the In Bag Compression Recovery Method, wherein the upper nonwoven layer comprises bicomponent fibers comprising polyethylene and polyethylene terephthalate in a sheath-core configuration, and wherein the polyethylene form the sheath.
However, Verrer teaches an absorbent article (abstract) wherein the stack of folded pads is placed in the interior space of the package such that the compression axis (1010) is oriented substantially along the width dimension of the package (1008) (fig. 8, compression stack axis 1010 in the direction of package width 1008).
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 method disclosed in Saevecke such that the compressed stack of folded disposable feminine hygiene pads is placed in the interior space of the package such that the compression axis of the stack of folded disposable feminine hygiene pads is oriented substantially along the width dimension of the package, as taught by Ferrer, for the purpose of providing a suitable means of allowing for more convenient handling and storage of the article (see Weisman, paragraph 0012).
Saevecke does not teach the method of closing the package such that the folded disposable feminine hygiene pads exhibit an In-Bag Folded Caliper from about 7.0 to about 15.0 mm, and such that upon removal from the package, the disposable feminine hygiene pads exhibit a % Caliper Recovery at 2 minutes of at least 4%, as measured according to the In Bag Compression Recovery Method, wherein the upper nonwoven layer comprises bicomponent fibers comprising polyethylene and polyethylene terephthalate in a sheath-core configuration, and wherein the polyethylene form the sheath.
However, Saevecke teaches wherein the packages may have an In-Bag Stack Height of less than 110 mm and greater than 60 mm (paragraph 0082). As further described in Weisman, the In-Bag Stack Height is the height of 10 absorbent articles within a package (1st paragraph in pg. 57, wherein width/article count per stack gives a height each article in the stack contributes, and x 10 to calculate how much height a stack of 10 articles contributes). As described within the instant specification, the In-Bag Folded Pad Caliper is calculated by dividing In-Bag Stack height by the number of pads per stack. As such, the caliper appears to be between 6-11 mm.
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 method disclosed in Saevecke such that it involves closing the package such that the folded disposable feminine hygiene pads exhibit an In-Bag Folded Caliper from about 7.0 to about 15.0 mm, since applicant appears to have not placed criticality on the claimed range, and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Saevecke does not teach the method of closing the package such that upon removal from the package, the disposable feminine hygiene pads exhibit a % Caliper Recovery at 2 minutes of at least 4%, as measured according to the In Bag Compression Recovery Method, wherein the upper nonwoven layer comprises bicomponent fibers comprising polyethylene and polyethylene terephthalate in a sheath-core configuration, and wherein the polyethylene form the sheath.
However, Ren teaches a composition for a layer as a fluid acquisition layer (paragraph 0077), wherein said acquisition/distribution layer was made with bicomponent fibers having a sheath and a core with a Polyethylene sheath and a polyethylene terephthalate core (paragraph 0077, “the staple fibers may have a sheath/core configuration comprising a polyethylene sheath and a polyester core, such as a core comprising polyethylene terephthalate”).
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 device disclosed in Saevecke such that wherein the upper nonwoven layer comprises bicomponent fibers comprising polyethylene and polyethylene terephthalate in a sheath-core configuration, and wherein the polyethylene form the sheath, as taught by Ren, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Moreover, where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). In this instance, since the claimed product in claim 20 mirrors that of Saevecke as modified by Weisman and Ferrer, it necessarily has the same performance.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRANDON W LEVY whose telephone number is (571)272-7582. The examiner can normally be reached M-F 7:30AM- 4:00 PM.
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/Brandon W. Levy/Examiner, Art Unit 3781
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