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 .
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the core structure being both three layers having different surface areas and a unitary but non-homogenous layer must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 13 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Claim 13 depends from claim 10. Claim 10 discloses three absorbent core structures having different surface areas. Claim 13 discloses a unitary but non-homogenous core structure. These appear to be described in the present specification as different embodiments of the absorbent core, and therefore the combination of both structures into one absorbent core fails to comply with the written description requirement.
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.
Claim 19 is 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.
Claim 19 recites the limitation "the plurality of tracks" in line 1. There is insufficient antecedent basis for this limitation in the claim. Claim 19 depends from claim 1, but the plurality of tracks were not disclosed until claim 18.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-2, 4, 6-7, 15, and 20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Shelley et al. (7,800,917).
With respect to claim 1, Shelley discloses a disposable absorbent undergarment, as shown in figure 7, comprising an undergarment body, as shown in figure 5, comprising a rear section configured to be positioned against a wearer’s posterior and a front section configured to be positioned against a wearer’s anterior. The undergarment comprises a topsheet 125, and absorbent core 120, and a backsheet, as shown in figure 5. The backsheet is formed of a nonwoven material 10, as shown in figure 2 and disclosed in column 14, lines 5-8. At least one side panel assembly extends from the rear section of the undergarment, as shown but not numbered in figure 7. The side panel assembly comprises a fastener system including extensible and retractable tabs extending from opposite sides of the rear section, as shown in figure 5 (retracted) and figure 7 (extended), the tabs being provided with a plurality of microhooks, as disclosed in column 22, lines 35-41. The backsheet 10 has a corrugated surface comprises a plurality of peaks and valleys, as shown in figure 2. The plurality of microhooks are configured to releasably attach to the corrugated surface of the backsheet, as disclosed in column 1, lines 11-16, to couple the rear section to the front section for securing the undergarment to the subject, as shown in figure 7.
With respect to claim 2, the backsheet 10 is coupled to an immediately adjacent inner layer 28 via a plurality of adhesive bonds 76 to form valleys corresponding to the adhesive bonds and peaks corresponding to a spacing between the adhesive bonds, as shown in figure 2, wherein the inner layer 28 forms a fluid impervious barrier, as disclosed in column 12, lines 57-60.
With respect to claim 4, the backsheet 10 is coupled to an immediately adjacent inner layer 28, as shown in figure 2, via a plurality of adhesive bonds 76 wherein the adhesive bonds are arranged substantially parallel to each other along a length of the backsheet so that the peak and valleys are parallel to each other, and each of the adhesive bonds 76 is spaced from an immediately adjacent adhesive bon by 8.5 mm, as disclosed in column 18, lines 1-3.
With respect to claim 6, the peaks and valleys are formed as a result of a pattern of adhesive bonds 76 used to couple the backsheet 10 to an inner layer 28 so that each valley corresponds to an adhesive bond and each peak corresponds to a spacing between adhesive bonds, as shown in figure 2.
With respect to claim 7, the adhesive bonds 76 extend an entire length of the backsheet 10 and inner layer 28, as shown in figure 3.
With respect to claim 15, Shelley discloses a disposable absorbent undergarment, as shown in figure 7, comprising an undergarment body, as shown in figure 5, comprising a rear section configured to be positioned against a wearer’s posterior and a front section configured to be positioned against a wearer’s anterior. The undergarment comprises a topsheet 125, and absorbent core 120, and a backsheet, as shown in figure 5. The backsheet is formed of a nonwoven material 10, as shown in figure 2 and disclosed in column 14, lines 5-8. At least one side panel assembly extends from the rear section of the undergarment, as shown but not numbered in figure 7, comprising a fastening mechanism including a plurality of microhooks, as disclosed in column 22, lines 35-41. The backsheet 10 has a corrugated surface comprises a plurality of peaks and valleys, as shown in figure 2. The plurality of microhooks are configured to releasably attach to the corrugated surface of the backsheet, as disclosed in column 1, lines 11-16, to couple the rear section to the front section for securing the undergarment to the subject, as shown in figure 7.
With respect to claim 20, Shelley discloses a disposable absorbent undergarment, as shown in figure 7, comprising an undergarment body, as shown in figure 5, comprising a rear section configured to be positioned against a wearer’s posterior and a front section configured to be positioned against a wearer’s anterior. The undergarment comprises a backsheet is formed of a nonwoven material 10, as shown in figure 2 and disclosed in column 14, lines 5-8. At least one side panel assembly extends from the rear section of the undergarment, as shown but not numbered in figure 7, comprising a fastening mechanism including a plurality of microhooks, as disclosed in column 22, lines 35-41. The backsheet 10 has a corrugated surface comprises a plurality of peaks and valleys, as shown in figure 2. The plurality of microhooks are configured to releasably attach to the corrugated surface of the backsheet, as disclosed in column 1, lines 11-16, to couple the rear section to the front section for securing the undergarment to the subject, as shown in figure 7.
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.
Claim(s) 3, 9, 14, and 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Shelley et al. (7,800,917).
With respect to claim 3, Shelley discloses all aspects of the claimed invention with the exception of the tabs having elastic properties. Providing the side panels of a diaper with elastic properties is well-known in the art to allow the tabs the be snuggly fastened to provide a secure fit around the waist of the wearer. It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to provide the tabs of Shelley with elastic properties to achieve the predictable result of an undergarment that securely fits around the waist of the wearer.
With respect to claim 9, Shelley discloses all aspects of the claimed invention with the exception of a wetness indicator positioned centrally along a portion of the length of the undergarment. The use of wetness indicators is well-known in the art to alert a caregiver to the need to change the diaper. It would therefore have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to provide the undergarment of Shelley with a wetness indicator centrally located along its length to achieve the predictable result of alerting a caregiver to the need to change the undergarment.
With respect to claim 14, Shelley discloses all aspects of the claimed invention with the exception of the topsheet comprising a breathable and fluid permeable material configured to absorb fluid and provide a degree of compression. Shelley remains silent as to the material, but the use of breathable, fluid permeable nonwoven materials to form the topsheet of a diaper is well-known in the art. It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to make the topsheet of Shelley from a breathable and fluid permeable material configured to absorb fluid and provide a degree of compression to achieve the predictable result of a topsheet that allows fluid to pass through to the absorbent core.
With respect to claim 19, Shelley discloses all aspects of the claimed invention with the exception of the plurality of tracks being applied in a pattern where the spacing is at least two times greater than a width of the adhesive track. Shelley shows in figure 2 that the spacing between adhesive tracks 76 is significantly greater than the width of the adhesive track 76, but remains silent as to the specific spacing. It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to make the spacing between the adhesive tracks of Shelley at least two times greater than the width of the adhesive tracks to achieve the predictable result of a sufficient space between the adhesives to allow the backsheet to form tall peaks as desired by Shelley.
Claim(s) 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Shelley et al. (7,800,917) in view of Igaue et al. (6,332,250).
With respect to claim 5, Shelley discloses all aspects of the claimed invention with the exception of different portions of the backsheet including different peaks and valleys such that the pattern varies along the backsheet. Igaue discloses an absorbent undergarment having a backsheet that comprises a plurality of peaks and valleys, as shown in figure 2. Allen teaches varying the pattern of peaks and valleys along the backsheet, as shown in figures 3 and 4, to improve attachment of the hook members depending on tension created by movement of the wearer, as disclosed in column 4, lines 8-19. It would therefore have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to vary the pattern of peaks and valleys along the backsheet of Shelley, as taught by Allen, to improve attachment of the hook members depending on tension created by movement of the wearer.
Claim(s) 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Shelley et al. (7,800,917) in view of Allen et al. (2004/0203309).
With respect to claim 8, Shelley discloses all aspects of the claimed invention with the exception of the pattern of adhesive bonds being confined to the front section only. Allen discloses an absorbent undergarment, as shown in figure 1, comprising a backsheet configured to cooperate with hook fastening members, as disclosed in paragraph [0038]. Allen teaches that the area of attachment can comprise either the entire backsheet, as shown in figure 2, or be confined to the front section only, as shown in figure 1. It would therefore have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to provide the pattern of adhesive bonds of Shelley in the front section only, as taught by Allen, to achieve the predictable result of reducing the amount of nonwoven material required to produce the undergarment.
Claim(s) 10 and 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Shelley et al. (7,800,917) in view of Jezzi et al. (5,558,655).
With respect to claim 10, Shelley discloses all aspects of the claimed invention with the exception of the absorbent core comprising a top core structure having a first surface area, a middle core structure having a second surface area, and a bottom core structure having a third surface area, wherein the first surface area is less than the second surface area and the bottom core has a periphery that falls substantially within the contours of the middle core. Jezzi discloses an absorbent core comprising a top core layer 33, a middle core layer 34, and a bottom core layer 35, as shown in figure 2, wherein the surface area of the top core layer 33 is less than the surface area of the middle core layer, and the outer periphery of the bottom core layer 35 falls substantially within the contours of the middle core layer 34. It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to provide the absorbent core of Shelley with a top core structure having a first surface area, a middle core structure having a second surface area, and a bottom core structure having a third surface area, wherein the first surface area is less than the second surface area and the bottom core has a periphery that falls substantially within the contours of the middle core, as taught by Jezzi, to achieve the predictable result of combining known prior art elements to yield the predictable result of improved absorbent capacity.
With respect to claim 12, modified Shelley discloses all aspects of the claimed invention with the exception of the bottom core including a greater density of SAP that one or both of the top and middle cores. Providing a greater density of SAP in the bottom core layer of an absorbent core is well known in the art to achieve a lower storage layer to hold liquids. It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to provide the bottom core of modified Shelley with a greater density of SAP to achieve the predictable result of a lower storage layer to hold fluids.
Claim(s) 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Shelley et al. (7,800,917) in view of Jezzi et al. (5,558,655) and further in view of Osterdahl et al. (6,020,536).
With respect to claim 11, Shelley as modified by Jezzi discloses all aspects of the claimed invention with the exception of the bottom core having a lesser thickness than either of the top and middle cores. Osterdahl teaches a bottom core 18 having a lesser thickness than the top core 16 and middle core 17, as shown in figure 2. It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to make the bottom core of modified Shelley less thick than the top core and middle core, as taught by Osterdahl, to achieve the predictable result of combining known prior art elements.
Claim(s) 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Shelley et al. (7,800,917) in view of Jezzi et al. (5,558,655) and further in view of Kimura et al. (2007/0156107).
With respect to claim 13, modified Shelley discloses all aspects of the claimed invention with the exception of the absorbent core being a unitary structure having a portion that comprises fluff without SAP and a portion that comprises fluff with SAP. Kimura teaches a unitary absorbent core structure having a portion 11A having fluff without SAP and a portion 11B having fluff with SAP 12, as shown in figure 2, which reduces stuffiness and improves wearer comfort, as disclosed in paragraph [0020]. It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to make the absorbent core of modified Shelley a unitary structure having a portion that comprises fluff without SAP and a portion that comprises fluff with SAP, as taught by Kimura, to reduce stuffiness and improve wearer comfort.
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 16-18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 15 of U.S. Patent No. 12,186,173. Although the claims at issue are not identical, they are not patentably distinct from each other because the patented claims disclose all limitations of the present claims and therefore anticipate the present claims.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LYNNE ANDERSON whose telephone number is (571)272-4932. The examiner can normally be reached Monday-Friday 10-6.
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/CATHARINE L ANDERSON/Primary Examiner, Art Unit 3781
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