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 .
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-23 of copending Application No. 18978106. Although the claims at issue are not identical, they are not patentably distinct from each other because the Instant Claims are almost identical to those of Application No. 18978106.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim Objections
Claim 13 is objected to because of the following informalities: there is an extra comma after “330 µm”. Appropriate correction is required.
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 1-20 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.
The term “about” in claims 1, 4-5, 10-15, and 17-18 is a relative term which renders the claim indefinite. The term “about” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear what range of values would constitute “about”.
Claim 17 is rejected for the recitation of “a fluid management”. It is unclear exactly what Applicant is intending to claim. It is believed Applicant intended to recite “ a fluid management layer”. Applicant is advised to clarify the claim language.
Claim 17 recites the limitation "the fluid management layer". There is insufficient antecedent basis for this limitation in the claim.
Claim 17 recites the limitation "the polymeric fibers". There is insufficient antecedent basis for this limitation in the claim.
The remaining claim(s) is/are rejected due to dependency upon a rejected claim.
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, 8-11, 14-17, and 19-20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Arora et al. (US 20220104974 A1).
Regarding Claim 1, Arora discloses a fluid management layer ("fluid management layer may be disposed between the absorbent core and the topsheet" [0101]) comprising:
a nonwoven ("carded nonwoven of the fluid management layers" [0114]) having a basis weight of from about 40 gsm to about 75 gsm ("basis weight of up to 75 grams per square meter (gsm); or a basis weight of up to 70 gsm; or a basis weight in the range of between about 30 gsm to about 75 gsm" [0104]),
wherein the nonwoven comprises: from about 15 to about 35 weight percent of cellulosic fibers ("20 percent by weight viscose cellulose fibers" [0150]), from about 65 to about 85 weight percent of bonding fibers ("25 percent to about 70 percent stiffening fibers" Abstract), wherein the fluid management layer has a caliper factor of from about 0.26 to about 0.35 ("caliper factor of between 0.13 mm to about 0.3 mm" [0107]), and wherein the cellulosic fibers and the bonding fibers have a decitex below about 2 ("1.0 dtex to about 6 dtex" [0129]).
Regarding Claim 8, Arora discloses the cellulosic fibers are selected from cotton, rayon, viscose, lyocell, natural cellulose, regenerated cellulose and combinations thereof ([0127]).
Regarding Claim 9, Arora discloses the bonding fibers are selected from Bicomponent polyethylene terephthalate / polyethylene, combinations of polyethylene, polypropylene, polyethylene terephthalate, Co-polyethylene terephthalate and combinations thereof ([0130]).
Regarding Claim 10, Arora discloses cellulosic fibers have a decitex of from about 0.5 to about 1.7 ("1 dtex to about 7 dtex" [0125]).
Regarding Claim 11, Arora discloses bonding fibers have a decitex of from about 1 to about 2 ("1.0 dtex to about 6 dtex" [0129]).
Regarding Claim 14, Arora discloses the fibers are from about 10 to about 120 mm in length ("length of up to 120 mm or may have a length as short as 10 mm" [0048]).
Regarding Claim 15, Arora discloses the fibers are from about 24 to about 95 mm in length ("length of the absorbent fibers can be in the range of about 20 mm to about 100 mm, or about 30 mm to about 50 mm or about 35 mm to about 45 mm, specifically reciting all values within these ranges and any ranges created thereby" [0127]).
Regarding Claim 16, Arora discloses the fibers length is selected from a same length, a different length, or combinations thereof ("the fibers are “continuous” (of relatively long, variable and indefinite lengths) or staple fibers (fibers cut into relatively short and substantially uniform lengths)" [0004]).
Regarding Claim 17, Arora discloses a disposable absorbent article ([0002]) comprising a topsheet, a backsheet, an absorbent core disposed between the topsheet and the backsheet ([0058]), and a fluid management disposed between the topsheet and the absorbent core ("fluid management layer may be disposed between the absorbent core and the topsheet" [0101]) wherein the fluid management layer comprises a nonwoven ("carded nonwoven of the fluid management layers" [0114]) having a basis weight of from about 40 gsm to about 75 gsm ("basis weight of up to 75 grams per square meter (gsm); or a basis weight of up to 70 gsm; or a basis weight in the range of between about 30 gsm to about 75 gsm" [0104]), from about 15 to about 35 weight percent of cellulosic fibers ("20 percent by weight viscose cellulose fibers" [0150]), from about 65 to about 85 weight percent of bonding fibers ("25 percent to about 70 percent stiffening fibers" Abstract), wherein the fluid management layer has a caliper factor of from about 0.26 to about 0.35 ("caliper factor of between 0.13 mm to about 0.3 mm" [0107]), and wherein the cellulosic fibers and the polymeric fibers have a decitex below about 2 ("1.0 dtex to about 6 dtex" [0129]).
Regarding Claim 19, Arora discloses divider fibers ("resilient fibers" Abstract & [0127]).
Regarding Claim 20, Arora discloses the divider fibers are selected from polypropylene, polyethylene terephthalate, bicomponent polyethylene, bicomponent polypropylene, bicomponent polyethylene terephthalate and combinations thereof ([0135]).
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 2-3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Arora in view of Zafiroglu (US 5247893 A).
Regarding Claims 2-3, Arora fails to specify integrated stitches at a stitch density of between 90 and 220 punches per square centimeter; the stitch direction is selected from a top stitch direction, a bottom stitch direction, and combinations thereof. However, Zafiroglu teaches “a stretchable stitchbonded fabric having a nonwoven layer” (col. 1 ln. 9-10) comprising integrated stitches (“spaced apart, parallel, longitudinal rows of stitches” col. 1 ln. 12-13); the stitch direction is selected from a top stitch direction, a bottom stitch direction, and combinations thereof (col. 4 ln. 1-24). Arora/Zafiroglu fails to specify a stitch density of between 90 and 220 punches per square centimeter. However, Zafiroglu teaches stitchbonding nonwoven to provide stretch (col. 1 ln. 46-64) and teaches the stitch density as a results effective variable to affect the degree of stretchability (col. 3 ln. 3-28). Therefore, it would have been obvious to one of ordinary skill in the art to arrive at the claimed stitch density of integrated stitches through routine experimentation as taught by Zafiroglu in order to achieve the desired level of stretchability.
Claims 4-7 are rejected under 35 U.S.C. 103 as being unpatentable over Arora et al.
Regarding claim 4, Arora teaches “The stiffening fibers can help increase structural integrity of the fluid management layer in a machine direction and/or in a cross-machine direction which can facilitate web manipulation during processing of the fluid management layer for incorporation into a disposable absorbent article” ([0128]). Therefore, Arora teaches the MD:CD peak load ratio as a results effective variable in order to affect the peak load and mechanical properties of the fluid management layer. Therefore, it would be obvious to arrive at the claimed MD:CD peak load ratio through routine optimization to increase structural integrity of the fluid management layer.
Regarding claim 5, Arora teaches the divider fibers (“resilient fibers” [0134]) can be “Any suitable size fiber” ([0134]) and mention specific embodiments of decitexes (“4 dtex to about 15 dtex, from about 5 dtex to about 12 dtex, or from about 6 dtex to about 10 dtex” [0134]). It is noted that Arora et al. is relied upon for all that is taught and is in no way limited to specific embodiments. It would have been obvious for one of ordinary skill in the art to use divider fibers with a dtex less than about 2 in order to ensure comfort and strength across the layer.
Regarding claim 6, Arora discloses the divider fibers are selected from polypropylene, polyethylene terephthalate, bicomponent polyethylene, bicomponent polypropylene, bicomponent polyethylene terephthalate and combinations thereof ([0135]).
Regarding claim 7, Arora discloses the divider fibers are non-cylindrical polypropylene ("spiral, scalloped oval, trilobal, scalloped ribbon" [0135]).
Claims 12 is rejected under 35 U.S.C. 103 as being unpatentable over Arora et al. in view of Viens (US 20200306099 A1).
Regarding claim 12, Arora is silent regarding the claimed MD peak load and CD peak load. However, Viens et al. teaches MD peak load and CD peak load in the claimed range in order to facilitate handling ([0086-0088]). It would have been obvious to one of ordinary skill in the art to use the MD peak load and CD peak load as taught by Viens et al. in Arora et al. in order to facilitate handling.
Claims 13 is rejected under 35 U.S.C. 103 as being unpatentable over Arora et al. in view of Daleyet et al. (US 6613028 B1).
Regarding claim 13, Arora fails to specify the average pore size is from about 90 to about 330 µm. However, Daleyet teaches a personal care absorbent article (Abstract) wherein the average pore size is from about 90 to about 330 µm, ("average pore size of about 40-500 microns" (col. 13 ln. 33). It would be obvious to modify Arora to arrive at the claimed invention to suitably “accept liquid from the distribution strip, particularly when the distribution strip is highly loaded with liquid” (col. 13 ln. 49-51).
Claims 18 is rejected under 35 U.S.C. 103 as being unpatentable over Arora et al. in view of Denti et al. (US 20200315859 A1)
Regarding claim 18, Arora fails to specify the absorbent article has a Z-compression compression energy of from about 2.6 N.mm to about 4.0 N.mm, a 3 point MD bend dry bending stiffness of from about 15 N.mm^2 and about 40 N.mm^2, and a wet bunch compression % recovery of greater than about 40%. However, Denti teaches an absorbent article wherein the Z-compression compression energy, 3 point MD bend dry bending stiffness, and wet bunch compression % recovery are results effective variables to affect the degree of comfort ([0123-0128]). Therefore, it would have been obvious to one of ordinary skill in the art to arrive at the claimed physical properties through routine experimentation as taught by Denti in order to achieve the desired level of comfort and structural strength ([0123]).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant’s disclosure. The references provided on the attached PTO-892 form are considered relevant to applicant’s disclosure and are cited to further show the general state of the art.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Cheng Fong "Ted" Yang whose telephone number is (571)272-8846. The examiner can normally be reached 10am - 6pm (EST) M-F.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Rebecca E. Eisenberg can be reached at (571) 270-5879. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Adam Marcetich/Primary Examiner, Art Unit 3781
Cheng Fong "Ted" Yang
Examiner
Art Unit 3781
Prosecution Insights