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 § 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 13-16 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 13, the phrase "such as" renders the claim indefinite because it is unclear whether the “layer of spacer material” following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Claims 14-16 are rejected as indefinite by virtue of their dependence on claim 13, and if the rejection of claim 13 under 35 U.S.C. 112(b) is overcome, then so will those of claims 14-16.
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.
Claims 1-7, 9-10, 12-16, and 18-19 are rejected under 35 U.S.C. 103 as being unpatentable over Fuller (GB 2592873 A) in view of Högberg et al. (US 2023/0201048 A1).
Regarding claim 1, Fuller discloses a washable absorbent male underwear (Fig. 1, feat. 1; Page 3, line 29 – Page 4, line 14) comprising a textile pant (2, 3a-b, 4; Page 4, lines 28-30) and an absorbent assembly (Figs. 1-3, feat. 10; Page 6, lines 5-26), the textile pant having an extension in a longitudinal direction, in a transverse direction and in a thickness direction perpendicular to the longitudinal direction, and the transverse direction and comprising a front portion (Fig. 2, feat. UFR; Page 5, line 18 – Page 6, line 21), a rear portion (URR), and a crotch portion (LCR), the absorbent assembly being permanently secured in the textile pant (Figs. 1-2, feat. 5a-e; Page 8, line 19 – Page 10, line 6), the absorbent assembly (Fig. 3, feat. 10) comprising a liquid permeable layer (Fig. 3, feat. 11; Page 10, line 17 – Page 11, line 10), a liquid impermeable layer (Fig. 3, feat. 16; Page 12, lines 18-31); and an absorbent structure (Fig. 3, feat. 13 and 15; Page 10, line 25 – Page 11, line 4) being arranged in the front portion of the textile pant (Fig. 2, feats. 10, UFR) between the liquid permeable layer (11) and the liquid impermeable layer (16) and comprising a first layer of textile absorbent material (13; Page 11, line 12 – Page 12, line 2), the first layer of textile absorbent material defining a first absorbent area (Figs. 1-3, feats. 10 and 13: first layer 13 is part of the absorbent assembly 10, and therefore defines the a first absorbent area that is the same as the absorbent assembly 10) the absorbent assembly (Fig. 3, feat. 10) comprising: a leak protection zone, having an area which is defined by the area of the liquid impermeable layer (Figs. 1-3, feats. 10 and 16: liquid impermeable layer 16 is part of the absorbent assembly, and therefore defines a liquid protection zone area that is the same as the absorbent assembly 10), an entirety of the absorbent structure overlapping the leak protection zone (Figs. 1-3, feats. 10, 13, and 16).
Fuller does not disclose that the area of the leak protection zone is greater than the area of the first absorbent zone.
Högberg teaches washable sanitary products (Figs. 1a-b, feat. 100; ¶0049-0054; Figs. 2a-b, feat. 101; ¶0062-0064; Figs. 3a-b, feat. 102; ¶0065-0068) comprising a one absorbent structure (Figs. 1a-b, feat. 70) comprising at least one absorbent layer (Figs. 1a-b, feat. 20; ¶0049-0055; Figs. 2a-b, feats. 20, 26; ¶0062; Figs. 3a-b, feats. 20, 26, 28; ¶0065) and a liquid impermeable backsheet (30) which extends radially outside a peripheral portion of the absorbent structure (Fig. 1b, feats. 30, 72; ¶0051) in order to provide a peripheral seal (15b; ¶0051-0054). Högberg teaches that this configuration advantageously makes the underside of the sanitary product liquid impermeable and aids with preventing side edge leakage (¶0050 and 0054). Because the area of the leak protection zone of Fuller is defined by the area of the impermeable layer, by modifying the underwear of Fuller so that the impermeable layer extends radially outside a peripheral portion of the absorbent structure as taught by Högberg, the area of the leak protection zone would be made greater than the area of the first absorbent zone. Therefore, it would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the underwear disclosed by Fuller so that the area of the leak protection zone is greater than the area of the first absorbent zone in order to aid with preventing side edge leakage as taught by Högberg.
Regarding claim 2, Fuller in view of Högberg suggests the underwear of claim 1. As discussed above, Högberg teaches that the area of the impermeable layer, and therefore leak protection zone, is greater than the area of the absorbent structure, and therefore the first absorbent zone. However, Högberg, and therefore Fuller in view of Högberg, is silent with respect to the ratio between the area of the first absorbent zone and the area of the leak protection zone. However, the court has held that, where the only difference between the prior art and the claims is 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, then the claimed device was not patentably distinct from the prior art device. Please see MPEP §2144.04(IV)(A) with respect to Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984). In this case, both the liquid impermeable layer of the device suggested by Fuller in view of Högberg and the liquid impermeable layer of the claimed device serve to prevent leakage from an absorbent structure, and modifying the absorbent structure of Fuller in view of Högberg so that the first absorbent zone is at most 70% of the area of the leak protection zone as claimed would cause the liquid impermeable layer to continue to prevent leakage from the absorbent structure.
Regarding claim 3, Fuller in view of Högberg suggests the underwear of claim 2. As discussed above, Högberg teaches that the impermeable layer extends radially outside a peripheral portion of the absorbent structure (¶0051), and therefore that the leak protection zone defined by the impermeable layer extends in the transverse direction from the first absorbent zone. Therefore, Fuller in view of Högberg further suggests that the leak protection zone extends in the transverse direction laterally outside of the first absorbent zone in a portion of the leak protection zone.
Regarding claim 4, Fuller in view of Högberg suggests the underwear of claim 3. As discussed above, Högberg teaches that the impermeable layer extends radially outside a peripheral portion of the absorbent structure (¶0051). The absorbent structure of Fuller, and therefore the one of Fuller in view of Högberg, extends up to the waist region in the front portion of the underwear (Fuller: Figs. 1-2, feats. 2 and 10). Therefore, because the impermeable layer, and therefore leak protection zone, extends radially outside a peripheral portion of the absorbent structure, the leak protection zone also extends in each lateral direction of the first absorbent area in the waist region. Therefore, Fuller in view of Högberg further suggests that a portion of the leak protection zone is arranged at each lateral side of the first absorbent area in a waist region of the front portion of the absorbent male underwear.
Regarding claims 5-6, Fuller in view of Högberg suggests the underwear of claim 1. As discussed above, Högberg teaches that the impermeable layer extends radially outside a peripheral portion of the absorbent structure (¶0051), and therefore that the leak protection zone defined by the impermeable layer extends in the longitudinal direction. Because the first absorbent area defined by the first layer of textile absorbent material of Fuller in view of Högberg extends through the crotch of the textile pant (Fuller: Fig. 2, feats. 10 and LCR), the impermeable layer extending radially outside a peripheral portion of the absorbent structure would also cause it to extend into the crotch portion of the absorbent male underwear. Furthermore, because the first absorbent area of Fuller in view of Högberg extends to the rear of the article (Fuller: Fig. 2, feats. 10 and URR), so would the leak protection zone. Therefore, Fuller in view of Högberg further suggests that the leak protection zone extends in the longitudinal direction outside of the first absorbent zone and into the crotch portion of the absorbent male underwear, with respect to claim 5, and so that the leak protection zone extends in the longitudinal direction outside of the first absorbent zone and through the crotch portion of the textile pant and in to the rear portion of the textile pant, with respect to claim 6.
Regarding claim 7, Fuller in view of Högberg suggests the underwear of claim 1. As discussed above, Fuller discloses the absorbent structure (Fuller: Figs. 1-2, feat. 10) and Högberg teaches that the impermeable layer, and therefore leak protection zone, extends radially outside a peripheral portion of the absorbent structure (Högberg: ¶0051). Fuller in view of Högberg is silent with respect to the proportion of the textile pant (Fuller: Figs. 1-2, feats. 2, 3a-b, 4) that the absorbent structure (Fuller: Figs. 1-2, feat. 10), and therefore the leak protection zone, takes up. However, the court has held that, where the only difference between the prior art and the claims is 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, then the claimed device was not patentably distinct from the prior art device. Please see MPEP §2144.04(IV)(A) with respect to Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984). In this case, both the liquid impermeable layer, and therefore leak protection zone, of the device suggested by Fuller in view of Högberg and the liquid impermeable layer, and therefore leak protection zone, serve to prevent leakage from an absorbent structure into a textile pant, and modifying the impermeable layer and leak protection zone of the Fuller in view of Högberg to cover at most 50% of the area of the textile pant as claimed would not change that function.
Regarding claim 9, Fuller in view of Högberg suggests the underwear of claim 1. Högberg further teaches absorbent layers (Figs. 1a-b, feat. 2; ¶0049-0055; Figs. 2a-b, feats. 20, 26; ¶0062; Figs. 3a-b, feats. 20, 26, 28; ¶0065) comprising spacer fabric comprising an upper layer (Fig. 1b, feat. 22) connected to a lower layer (23) by spacer pile filaments made of wicking thermoplastic fibers (24; ¶0055-0060). Högberg teaches that such a spacer fabric facilitates washability and drying time (¶0060). Therefore, it would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the underwear suggested by Fuller in view of Högberg so that the first absorbent layer is a spacer fabric layer comprising a top web and a bottom web which are interconnected by pile filaments extending in the thickness direction between the top web and the bottom web in order to facilitate washability and drying time as taught by Högberg.
Regarding claim 10, Fuller in view of Högberg suggests the underwear of claim 1, and Fuller further discloses that the absorbent assembly is cup-shaped within the first absorbent area (Figs. 1-2, feat. 10).
Regarding claim 12, Fuller in view of Högberg suggests the underwear of claim 1, and Fuller further discloses that the absorbent structure (Figs. 1-3, feat. 10) comprises a second layer of textile absorbent material (Fig. 3, feat. 15; Page 11, lines 1-15; Page 12, lines 4-16), the first layer of textile absorbent material (Fig. 3, feat. 13) completely overlapping with the second layer of textile absorbent material (Fig. 3, feat. 15; Page 12, lines 7-11). Regarding claim 13, Fuller further discloses that one of the first layer of textile absorbent material and the second layer of textile absorbent material is a liquid acquisition layer (Fig. 3, feat. 13; Page 11, line 6 – Page 12, line 2: first absorbent fabric 13 absorbs fluid from the liquid permeable layer 11, and is permeable to enable the passage of fluid to the second absorbent fabric 15, and is therefore a liquid acquisition layer) and the other of the first layer of textile absorbent material and the second layer of textile absorbent material is a liquid storage layer (Fig. 3, feat. 15; Page 12, lines 4-16: second absorbent fabric 15 captures and absorbs liquid from the first absorbent fabric 13, and therefore stores liquid absorbed from first fabric 13). Regarding claim 14, Fuller further discloses that the first layer of textile absorbent material is the liquid acquisition layer (Fig. 3, feat. 13; Page 11, line 6 – Page 12, line 2) and the second layer of textile absorbent material is the liquid storage layer (Fig. 3, feat. 14; Page 12, lines 4-16).
Regarding claim 15, Fuller in view of Högberg suggests the underwear of claim 14. Högberg further teaches an embodiment (Figs. 3a-b, feat. 102; ¶0065-0068) in which a second layer of textile absorbent material (26) comprises portions which extend beyond the entire periphery of a first layer of textile absorbent material (28), and therefore the first absorbent zone defined by the first layer of textile absorbent material, in order to make the absorbent structure thicker in its center than in its edges (¶0067). Therefore, it would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the underwear suggested by Fuller in view of Högberg so that one or more second absorbent zones are formed by portions of the second layer of textile absorbent material extending beyond a periphery of the first absorbent zone in order to make the absorbent structure thicker in its center than in its edges as taught by Högberg.
Regarding claim 16, Fuller in view of Högberg suggests the underwear of claim 13, and Fuller further discloses that the second textile absorbent layer is a liquid retaining layer (Fig. 3, feat. 15) arranged between the first layer of textile absorbent material (Fig. 3, feat. 13) and the liquid impermeable layer (Fig. 3, feat. 16).
Regarding claims 18-19, Fuller in view of Högberg suggests the underwear of claim 12. As discussed above, Högberg further teaches an embodiment (Figs. 3a-b, feat. 102; ¶0065-0068) in which a second layer of textile absorbent material (26) comprises portions which extend beyond the entire periphery of a first layer of textile absorbent material (28) in order to make the absorbent structure thicker in its center than in its edges (¶0067). Because the second layer of textile absorbent material extends beyond the periphery of the first layer of textile absorbent material, it defines a second absorbent zone which extends around the entire periphery of the first absorbent zone. Furthermore, because the absorbent structure comprising the first and second absorbent textile materials is arranged in the crotch portion of the pant (Fuller: Figs. 1-2, feats. 10, LCR), the second absorbent zone would extend partially through the crotch of the textile pant. Furthermore, because the second absorbent zone extends beyond the entire periphery of the first absorbent zone, it comprises portions which are arranged at each lateral side of the first absorbent zone in the front of the textile pant. Therefore, it would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the underwear suggested by Fuller in view of Högberg so that a second absorbent zone is arranged in the crotch portion of the textile pant, with respect to claim 18, and so that a second absorbent zone is arranged at each lateral side of the first absorbent zone in the front portion of the textile pant, with respect to claim 19, in order to make the absorbent structure thicker in its center than in its edges as taught by Högberg.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Fuller in view of Högberg and in further view of Kajanthan et al. (US 2021/0030605 A1).
Regarding claim 8, Fuller in view of Högberg suggests the underwear of claim 1, but is silent with respect to the liquid impermeable layer is a breathable layer.
Kajanthan teaches an absorbent pad (Fig. 1, feat. 100; ¶0029) for a garment (200) comprising an absorbent structure (104; ¶0040) and an impermeable barrier layer (106; ¶0041). The impermeable layer is fluid impermeable, but breathable so that it can prevent leaks, but enable the passage of gasses such as water vapor (¶0041). Therefore, it would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the underwear suggested by Fuller in view of Högberg so that the liquid impermeable layer is a breathable layer in order so that it can prevent leaks, but enable the passage of gasses such as water vapor as taught by Kajanthan
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Fuller in view of Högberg and in further view of Ruggieri (US 2012/0180198 A1).
Regarding claim 11, Fuller in view of Högberg suggests the underwear of claim 10, but does not disclose that the absorbent assembly comprises first and second side-panels joined along curved side-edges by a central join extending in the longitudinal direction from a top edge to a bottom edge of the absorbent assembly, the central join extending perpendicular to the transverse direction.
Ruggieri teaches an undergarment (Figs. 1-4, feat. 10; ¶0019) comprising an absorbent assembly (Figs. 4-8, feat. 22; ¶0012-0015) which comprises a pair of side panels joined by a central and longitudinally extending join along curved side edges (Fig. 7). Ruggieri teaches that such an absorbent assembly is adaptively shaped and aids with providing scrotal and genital protection (¶0018 and 0022). Therefore, it would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the underwear suggested by Fuller in view of Högberg so that the absorbent assembly comprises first and second side-panels joined along curved side-edges by a central join extending in the longitudinal direction from a top edge to a bottom edge of the absorbent assembly, the central join extending perpendicular to the transverse direction in order to aid with providing scrotal and genital protection as taught by Ruggieri.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Fuller in view of Högberg and in further view of Röttger et al. (WO 2019/219760 A1).
Regarding claim 17, Fuller in view of Högberg suggests the underwear of claim 12, but is silent with respect to the relative thicknesses of the first and second layers of textile absorbent material.
Röttger teaches an absorbent article (Figs. 1A-B, feat. 100; Page 31, line 19 – Page 32, line 23) comprising an absorbent structure (Fig. 1B, feat. 127; Page 32, lines 3-23) with a first layer of textile absorbent material (126, ISM) and a second layer of textile absorbent material (128, USM). Röttger teaches that the second layer of textile absorbent material (Fig. 1B, feat. 128, USM) should be thinner than the first layer (126, ISM) in order receive and retain fluid without overly contributing to the thickness of the article (Page 15, lines 25-31). Therefore, it would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the underwear suggested by Fuller in view of Högberg so that the second layer of textile absorbent material is thinner than the first layer of textile absorbent material so that it may receive and retain fluid without overly contributing to the thickness of the absorbent structure as taught by Röttger.
Claims 20-22 are rejected under 35 U.S.C. 103 as being unpatentable over Fuller in view of Högberg and in further view of Gielis et al. (EP 3437604 A1).
Regarding claim 20, Fuller in view of Högberg suggests the underwear of claim 1, but does not disclose that the layers of the absorbent assembly are connected with each other by a first construction seam and at least one second construction seam, each construction seam connecting a number of layers being less than a total number of layers in the absorbent assembly, a layer in the first construction seam being the same as a layer in the at least one second construction seam and a layer in the first construction seam being different from a layer in the at least one second construction seam. Regarding claim 21, Fuller in view of Högberg is further silent with respect to the first layer of textile absorbent material being attached to the second layer of textile absorbent material by the first construction seam and the second layer of textile absorbent material being attached to the liquid permeable layer and the liquid impermeable layer by the second construction seam. Regarding claim 22, Fuller in view of Högberg is further silent with respect to the first layer of textile absorbent material being attached to the second layer of textile absorbent material and to the liquid impermeable layer by the first construction seam and the liquid permeable layer being attached to the liquid impermeable layer by the second construction seam.
Gielis teaches an absorbent assembly (Figs. 4A-6, feat. 100; ¶0028) for use in a garment comprising a liquid permeable layer (Figs. 5-6, feat. 15; ¶0030), a laminate of liquid absorbent sheets (Figs. 5-6, feat. 1; ¶0032), a first liquid impermeable backsheet (30; ¶0029 and 0051-53), a second liquid impermeable backsheet (40; ¶0029 and 0054), and liquid impermeable sheet forming retaining flaps (10, 20; ¶0029 and 0038-0044). The absorbent assembly further comprises construction seams, or connection stitches, (Figs. 5 and 6, feats. 2 and 2’; ¶0047-0049) for coupling the liquid permeable layer (15), laminate of liquid absorbent sheets (1), first liquid impermeable backsheet (30), and retaining flaps (10, 20). A first construction seam (Figs. 5-6, feat. 2’) connects all the layers of the laminate of liquid absorbent sheets (1) with the liquid permeable layer (15), and retaining flaps (10, 20). A second construction seam (Figs. 5-6, feat. 2) connects all the layers of the laminate of liquid absorbent sheets (1) with the liquid permeable layer (15), first liquid impermeable backsheet (30), and retaining flaps (10, 20). Gielis teaches that such a configuration helps to minimize leakage from the absorbent assembly (¶0047-0049). Therefore, it would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the underwear suggested by Fuller in view of Högberg so that the layers of the absorbent assembly are connected with each other by a first construction seam and at least one second construction seam, each construction seam connecting a number of layers being less than a total number of layers in the absorbent assembly, a layer in the first construction seam being the same as a layer in the at least one second construction seam and a layer in the first construction seam being different from a layer in the at least one second construction seam, with respect to claim 20, so that the first layer of textile absorbent material is attached to the second layer of textile absorbent material by the first construction seam and the second layer of textile absorbent material is attached to the liquid permeable layer and the liquid impermeable layer by the second construction seam, with respect to claim 21, and so that the first layer of textile absorbent material is attached to the second layer of textile absorbent material and to the liquid impermeable layer by the first construction seam and the liquid permeable layer is attached to the liquid impermeable layer by the second construction seam, with respect to claim 22, in order to minimize leakage from the absorbent assembly as taught by Gielis.
Claim 23 is rejected under 35 U.S.C. 103 as being unpatentable over Fuller in view of Högberg, in further view of Gielis, and in further view of Lamb et al. (US 2023/0204327 A1).
Regarding claim 23, Fuller in view of Högberg and in further view of Gielis suggests the underwear of claim 20, and as discussed above, Gielis further teaches that the construction seam may comprise stitching (¶0047), but does not disclose that at least the first construction seam is a flat stitch.
Lamb teaches a garment (Fig. 1, feat. 100; ¶0029) comprising flat stitches (102, 108, 120, 122, 124, 126, and 128) which advantageously avoid discomfort to the wearer by reducing or eliminating the feeling of the stitch disturbing the skin of the wearer (¶0030). Therefore, it would have been prima facie obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the underwear suggested by Fuller in view of Högberg and in further view of Gielis so that at least the first construction seam is a flat stitch in order to avoid discomfort to the wearer as taught by Lamb.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ARJUNA P CHATRATHI whose telephone number is (571)272-8063. The examiner can normally be reached M-F 8:30-5:00.
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/ARJUNA P CHATRATHI/Examiner, Art Unit 3781
/ANDREW J MENSH/Primary Examiner, Art Unit 3781
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