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 1-2, 4-14 and 16-20 of copending Application No. 18/978,101. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the Application 1-2,4-14 and 16-20 are almost identical to those of the instant claims 1-20 with only the caliper range differing slightly in claim 1.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
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.
Claim 20 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 20 is rejected for the recitation of “a fluid management” in line. 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 20 recites the limitation "the fluid management layer" in line 3. There is insufficient antecedent basis for this limitation in the claim.
Claim 20 recites the limitation "the polymeric fibers" in line 8. There is insufficient antecedent basis for this limitation in the claim.
Claim Rejections - 35 USC § 102
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.
Claims 1, 5-14 and 20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Arora et al. (PG Pub. 2022/0104974).
Regarding claims 1 and 20, Arora et al. teaches a disposable absorbent article comprising a topsheet, a backsheet, an absorbent core disposed between the topsheet and the backsheet, and a fluid management disposed between the topsheet and the absorbent core wherein the fluid management layer comprises a nonwoven having a basis weight in the claimed range, the claimed amount of cellulosic fibers, the claimed amount of bonding fibers (stiffening fibers) and the claimed amount of divider fibers (resilient fibers) [Abstract and 0127]. The fluid management layer has a caliper factor in the claimed range [0107]. The cellulosic fibers and the bonding fibers have a decitex in the claimed range [Sample N].
Regarding claim 5, the divider fibers (resilisent fibers) comprise at least one of polypropylene, polyethylene terephthalate, bicomponent polyethylene, bicomponent polypropylene, and bicomponent polycthylene terephthalate [0135].
Regarding claim 6, the divider fibers (resilient fibers) are non-cylindrical polypropylene fibers [0135].
Regarding claims 7-8, the cellulosic fibers comprise at least one of cotton, rayon, viscose, lyocell, natural cellulose, and regenerated cellulose [0127].
Regarding claim 9, the bonding fibers (stiffening fibers) comprise at least one of bicomponent polyethylene terephthalate / polyethylene, combinations of polyethylene, polypropylene, polyethylene terephthalate, co-polyethylene terephthalate [0130].
Regarding claim 10-11, the bonding fibers are bicomponent polyethylene terephthalate / polyethylene wherein the core is polyethylene terephthalate and the sheath is polyethylene [0130].
Regarding claim 12, the bonding fibers further comprise non-cylindrical polymeric fibers [0130].
Regarding claim 13, cellulosic fibers have a decitex of from about 0.5 to about 1.7 [Sample N].
Regarding claim 14, the bonding fibers have a decitex of from about 1 to about 2 [Sample N].
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 3-4, 19 and 23 are rejected under 35 U.S.C. 103 as being unpatentable over Arora et al. (PG Pub. 2022/0104974).
Regarding claim 3, Arora et al. 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” in 0128 and therefore 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 and arrive at the claimed MD:CD peak load ratio.
Regarding claims 4 and 23, Arora et al. teach the divider fibers (or resilient fibers ) can be “Any suitable size fiber” in 0134 and do mention specific embodiments of decitexes. 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 uniformity of hand and properties across the layer given Arora et al. teach the bonding fibers and cellulosic fibers have a dtex less than about 2.
Regarding claim 19, Arora et al. are silent regarding the fiber length being same, different or a combination. However, given choices available for the fiber length (same, different or a combination), it would have been obvious to one of ordinary skill in the art to arrive at the claimed fiber lengths given the limited number of options and the level of ordinary skill in the art which it is known that fiber length affects the mechanical and hand properties of the resulting web.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Arora et al. (PG Pub. 2022/0104974) in view of Zafiroglu et al. (US Pat. 5,247,893).
Regarding claim 2, Arora et al. are silent regarding the claimed stitch density. However, Zafiroglu et al. teaches stitchbonding nonwoven to provide stretch and teaches the stitch density as a results effective variable to affect the degree of stretchability. 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 et al. in Arora et al. in order to achieve the desired level of stretchability and arrive at the claimed invention.
Claims 15-16 are rejected under 35 U.S.C. 103 as being unpatentable over Arora et al. (PG Pub. 2022/0104974) in view of Viens et al. (PG Pub. 2020/0306099).
Regarding claims 15-16, Arora et al. are 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 and 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 and arrive at the claimed invention.
Claims 15-16 are rejected under 35 U.S.C. 103 as being unpatentable over Arora et al. (PG Pub. 2022/0104974) in view of Hamilton et al. (6,443,936).
Regarding claims 16-17, Arora et al. are silent regarding the claimed average pore size. However, Hamilton et al. teaches an average pore size of the fluid management layer (acquisition layer) has the same average pore size of the top sheet and is 60-70 microns (which is in the claimed range) in order to provide breathability and to improve liquid draw. It would have been obvious to one of ordinary skill in the art to use the average pore size of Hamilton in Arora et al. in order to provide breathability and to improve liquid draw and arrive at the claimed invention.
Prior Art Not Used but Relevant
PG Pub. 2019/0133847 teaches an absorbent with topsheet, backsheet, core and fluid management layer.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SHAWN MCKINNON whose telephone number is (571)272-6116. The examiner can normally be reached Monday thru Friday generally 8:00am-5:00pm EST.
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/Shawn Mckinnon/Examiner, Art Unit 1789
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