DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Claim Objections
Claim 13 is objected to because of the following informalities: the claim recites “each leg cuff of the pair of leg cuffs if formed” and should read “each leg cuff of the pair of leg cuffs is formed”. Appropriate correction is required.
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 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 pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under pre-AIA 35 U.S.C. 103(a) 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 under pre-AIA 35 U.S.C. 103(a), the examiner presumes that the subject matter of the various claims was commonly owned at the time any inventions covered therein were made absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and invention dates of each claim that was not commonly owned at the time a later invention was made in order for the examiner to consider the applicability of pre-AIA 35 U.S.C. 103(c) and potential pre-AIA 35 U.S.C. 102(e), (f) or (g) prior art under pre-AIA 35 U.S.C. 103(a).
Claims 1-3, 5-9, and 12-18 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Nakaoka US Patent Application Publication 2007/0093164.
As to claim 1, Nakaoka teaches an absorbent article comprising a front region A, a back region C, a crotch region B disposed between the front region and the back region (Figure 14), and a longitudinal axis extending in a longitudinal direction of the article, the absorbent article comprising:
a) a liquid permeable topsheet 9:
b) a liquid impermeable backsheet 10 (paragraph 0097);
c) an absorbent core 2 disposed between the topsheet 9 and backsheet 10 (Nakaoka paragraph 0091, Figures 15A-15D) the absorbent core 2 comprising a combination of superabsorbent polymer and/or cellulose fibers (Nakaoka paragraph 0059);
d) at least one channel 25 positioned within a layer 2 located between the topsheet 9 and the backsheet 10 (Figs. 1 and 14; para.0036), and having a longitudinally-extending length (Fig. 1), wherein the at least one channel 25 is disposed within the crotch region (Figs. 1 and 14), and wherein the at least one channel 25 has a width that varies along its length - where the channels 25, 35 taper in width from the base or bonded portion toward the surface of the layer 2 or 3,respectively (Nakaoka Figure 2).; and
e) ) a pair of elastically extensible back ears 17 – where Nakaoka teaches the multi-layer sheet 17 includes an outer layer 18 and inner layer combined with elastic members 20b for improving the fit of the pants (0094; Figures 15B-15D).
Nakaoka does not specifically teach an indentation occurs in the topsheet or the backsheet that correspond to the at least one channel when the article is loaded with fluid. However, Nakaoka teaches when the article is loaded with fluid layer 3 expands by water absorption by swelling of the resin powder (paragraph 0046). Figure 8 shows the expansion of the layers resulting in increased thickness of the layer (paragraph 0048; Figure 8). It would be obvious to one having ordinary skill in the before the invention was originally filed to provide an indention in the backsheet or topsheet, especially the topsheet layer as the layer 3 that increases in volume is adjacent the topsheet layer in the absorbent article construction.
As to claim 2, Nakaoka teaches the absorbent article of claim 1, further comprising an elastic waist feature 20a,20b disposed on the back region C of the absorbent article and extending longitudinally outward from a waist edge of the absorbent core (Nakaoka Figure 14; paragraph 0094)
As to claim 3, Nakaoka teaches the absorbent article of claim 1, wherein the at least one channel being substantially free of fibers and superabsorbent polymer – where Nakaoka teaches the fiber assembly layer 2 has channels 25 formed by bonding the covering sheets 21, 22 in fiber absence regions 2b (paragraph 0067; Figure 3)
As to claim 5, the acquisition-distribution layer 3 comprises a nonwoven material – where Nakaoka teaches the nonwoven sheets 31, 32 may be used to form layer 3 (paragraph 0070).
As to claim 6, Nakaoka teaches the article of claim 1 comprising two channels 25/35 (Figure 2), element 3b(2b) in Figure 1.
As to claim 7, the two channels 25/35 are symmetrically arranged relative to the longitudinal axis (Nakaoka Figures 1 and 2).
As to claims 8 and 9, Nakaoka does not teach the article has a Relative Crotch Width Reduction or dry crotch width as claimed. With respect to the dry crotch width, the invention of Nakaoka does not teach the claimed size, but is from the same field of endeavor and as the present invention, thus it would be obvious to provide the claimed crotch width since the invention of Nakaoka is used for the same purpose, as an absorbent article in the diaper art. With respect to the RCWR, Nakaoka teaches the same structure and similar materials used in a similar structure. Thus, it would have been obvious to expect the invention of Nakaoka to achieve these material properties if subjected to the same material testing parameters since the article of Nakaoka is comprised of the same materials and meets the construction limitations as the present invention. It would have been obvious to one having ordinary skill in the art before the invention was originally filed to have applied the same testing procedures with the expectation of the same results since the same materials are used in the invention of Nakaoka. It is further noted: "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).
As to claim 12, Nakaoka teaches the absorbent article of claim 1 further comprising leg cuffs 11 (Figures 15A-15D; paragraphs 0092).
As to claim 13, Nakaoka teaches each leg cuff 11 of the pair of leg cuffs 11 is formed from a single piece of material – where Nakaoka teaches side sheet 11 is the same material as that for the back sheet 10 (paragraph 0098). Nakaoka teaches the backsheet 10 comprises a nonwoven fabric, plastic film, or composite (paragraph 0097).
As to claims 14 and 15, Nakaoka teaches an elastic waist feature 20a, 20b disposed in the front region A of the absorbent article and extending longitudinally outward from a waist edge of the absorbent core (Figure 14; para. 0094).
As to claim 16, Nakaoka teaches an absorbent article comprising a front region A, a back region C, a crotch region B disposed between the front region and the back region (Figure 14), and a longitudinal axis extending in a longitudinal direction of the article, the absorbent article comprising:
a) a liquid permeable topsheet 9:
b) a liquid impermeable backsheet 10 (paragraph 0097);
c) an absorbent core 2 disposed between the topsheet 9 and backsheet 10 (Nakaoka paragraph 0091, Figures 15A-15D) the absorbent core 2 comprising a combination of superabsorbent polymer and cellulose fibers (Nakaoka paragraph 0059);
d) at pair of channels 25, 35 positioned within a layer 2,3 located between the topsheet 9 and the backsheet 10 (Figs. 1, 2, and 14; paras.0036, 0042), and having a longitudinally-extending length (Fig. 1), wherein the pair of channels is disposed within the crotch region (Figs. 1 and 14), and wherein each channel of the pair of channels 25, 35 has a width that varies along its length - where the channels 25, 35 taper in width from the base or bonded portion toward the surface of the layer 2 or 3,respectively (Nakaoka Figure 2), and wherein the two channels 25/35 are symmetrically arranged relative to the longitudinal axis (Nakaoka Figures 1 and 2); and
e) ) a pair of elastically extensible back ears 17 – where Nakaoka teaches the multi-layer sheet 17 includes an outer layer 18 and inner layer combined with elastic members 20b for improving the fit of the pants (0094; Figures 15B-15D).
Nakaoka does not specifically teach an indentation occurs in the topsheet or the backsheet that correspond to the at least one channel when the article is loaded with fluid. However, Nakaoka teaches when the article is loaded with fluid layer 3 expands by water absorption by swelling of the resin powder (paragraph 0046). Figure 8 shows the expansion of the layers resulting in increased thickness of the layer (paragraph 0048; Figure 8). It would be obvious to one having ordinary skill in the before the invention was originally filed to provide an indention in the backsheet or topsheet, especially the topsheet layer as the layer 3 that increases in volume is adjacent the topsheet layer in the absorbent article construction.
As to claim 17, Nakaoka teaches the absorbent article of claim 16, further comprising an elastic waist feature 20a,20b disposed on the back region C of the absorbent article and extending longitudinally outward from a waist edge of the absorbent core (Nakaoka Figure 14; paragraph 0094)
As to claim 18, Nakaoka teaches the absorbent article of claim 16, further comprising an acquisition-distribution layer 3 disposed between the topsheet and the absorbent core 2 (Figs. 15A-15D; paras. 0033, 0042, 0090).
Claim 4 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Nakaoka US Patent Application Publication 2007/0093164 in view of Suzuki US Patent Application Publication 2006/0184146.
Nakaoka teaches the present invention substantially as claimed. Nakaoka does not specifically teach the channel width. Suzuki teaches an absorbent having at least one channel, powder absence regions, 2b(5) within the core (Suzuki Figure 5). Suzuki teaches the powder absence regions form a sealing portion with a width of about 5mm (Suzuki paragraph 0099). It would have been obvious to one having ordinary skill in the art before the invention was originally filed to provide the absorbent article of Nakaoka with channel widths of 5mm as taught in Suzuki since both layers are used in the same environment and for the same purpose of a nonwoven sheet-shaped layer in an absorbent article. The channel widths of 5mm fall in the claimed range of from 2mm to 20mm.
Claims 10 and 11 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Nakaoka US Patent Application Publication 2007/0093164 in view of Hundorf et al. US Patent Application Publication 2010/0051166.
Nakaoka teaches the present invention substantially as claimed. Nakaoka does not teach the absorbent article further comprising a primary fastening system comprising a pair of primary fasteners, wherein each of the primary fastener of the pair of primary fasteners is joined to a back ear of the pair of elastically extensible back ears. Hundorf teaches an absorbent article comprising extensile back ear with primary fasteners 46 for joining the back region 32 to secondary fasteners 48 disposed in the front region 30 of the article (Figure 1; Hundorf paragraphs 0047-0050). It would have been obvious to one having ordinary skill in the art before the invention was originally filed to provide Nakaoka with fasteners taught in Hundorf for the benefit of providing a refastenable article that can fit various sizes of users (Hundorf paragraph 0048).
Claims 19 and 20 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Nakaoka US Patent Application Publication 2007/0093164 in view of Kirby USPN 5533991.
As to claim 20, Nakaoka teaches an absorbent article comprising a front region A, a back region C, a crotch region B disposed between the front region and the back region (Figure 14), and a longitudinal axis extending in a longitudinal direction of the article, the absorbent article comprising:
a) a liquid permeable topsheet 9 comprising; a plurality of apertures – where Nakaoka teaches the topsheet comprises openings (para. 0096).
Nakaoka does not teach the topsheet has a primary aperture that differs from the remainder of the plurality of apertures in size and Nakaoka does not teach the topsheet is embossed. Kirby teaches an absorbent article having a bodyside cover having apertures 28 in a first material 26 which may vary in size, shape, and pattern( Kirby col. 6, lines 11-15; col. 13, lines 17-20). Kirby further teaches the second material 30 overlaps the first material 26 and is bonded by embossing, a combination of heat and pressure (col. 7, lines 33-39; col. 11, lines 43-50; Figure 1 and Figure 10).
Kirby teaches the benefit of the embossed and apertured cover is to provide softness and comfort to the user’s skin while having improved functionality in that it exhibits dryness, good fluid masking, and rapid fluid transfer (Kirby col. 3, lines 20-25). It would have been obvious to one having ordinary skill in the art to modify the topsheet of Nakaoka with the topsheet of Kirby for the benefits taught in Kirby.
Nakaoka/Kirby further teach:
b) a liquid impermeable backsheet 10 (paragraph 0097);
c) an absorbent core 2 disposed between the topsheet 9 and backsheet 10 (Nakaoka paragraph 0091, Figures 15A-15D);
d) at least one channel 25 positioned within a layer 2 located between the topsheet 9 and the backsheet 10 (Figs. 1 and 14; para.0036), and having a longitudinally-extending length (Fig. 1);
e) ) a pair of elastically extensible back ears 17 – where Nakaoka teaches the multi-layer sheet 17 includes an outer layer 18 and inner layer combined with elastic members 20b for improving the fit of the pants (0094; Figures 15B-15D).
Nakaoka does not specifically teach an indentation occurs in the topsheet or the backsheet that correspond to the at least one channel when the article is loaded with fluid. However, Nakaoka teaches when the article is loaded with fluid layer 3 expands by water absorption by swelling of the resin powder (paragraph 0046). Figure 8 shows the expansion of the layers resulting in increased thickness of the layer (paragraph 0048; Figure 8). It would be obvious to one having ordinary skill in the before the invention was originally filed to provide an indention in the backsheet or topsheet, especially the topsheet layer as the layer 3 that increases in volume is adjacent the topsheet layer in the absorbent article construction.
As to claim 20, Nakaoka teaches the absorbent article of claim 19, further comprising an elastic waist feature 20a,20b disposed on the back region C of the absorbent article and extending longitudinally outward from a waist edge of the absorbent core (Nakaoka Figure 14; paragraph 0094)
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.
12. Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-19 of Ehrnsperger et al. U.S. Patent No. 12,274,609. Although the conflicting claims are not identical, they are not patentably distinct from each other because the claims of the instant application is a broader recitation of the claims of the patent in that it does not set forth an acquisition-distribution layer that is devoid of superabsorbent polymer and channels. The claims of U.S. Patent No. 12,274,609 contain each and every limitation of the claims of the instant application as well as additional features. The claims of the US Patent are narrower than the claims of
the instant application, and effectively anticipate the instant claims. Thus, the invention of the patent claims 1, 16, and 19 are in effect a "species" of the "generic" invention of the instant claims 1, 16, and 19. It has been held that the generic invention is “anticipated” by the “species". See ln re Goodman, 29 USPQ2d 2010 (Fed. Cir. 1993).
13. Any inquiry concerning this communication or earlier communications from the examiner should be directed to JACQUELINE F STEPHENS whose telephone number is (571)272-4937. The examiner can normally be reached 8:30-5:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sarah Al-Hashimi can be reached at 571-272-7159. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JACQUELINE F STEPHENS/ Primary Examiner, Art Unit 3781
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