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 .
Response to Amendment
Amendments filed 01/08/2026 have been entered. The amendments overcome the 11b rejection of claim 1 and 10 (and dependents via dependency) and as such the 112b rejection of said claims is withdrawn. The 112b rejection of claim 11 and 15 is withdrawn, see response to arguments below.
Response to Arguments
Applicant's arguments filed 01/08/2026 have been fully considered. As detailed below, some arguments are persuasive and some arguments are not persuasive.
First the examiner notes that applicant provides an argument in view of the 112b rejection of the “knitted twill” of claims 11 and 15. Applicant argues that such a fabric is known in the art and is thus not contradictory language. The examiner agrees with this argument and updates the rejection of claim 15 to be in view of Zmatlik.
Regarding the prior art rejections the examiner notes the following
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Applicant argues that Vartiainen fails to teach a washable insert, the opening is not an insert-access opening, the construction of the layers is not as claimed, and there is no elastic waistband. The examiner notes that each of these features was combined with Vartiainen through prior art teachings, as detailed in the previous office action. Therefore the argument that Vartiainen fails to teach these limitations is found to be nonpersuasive. The same applies to applicant’s arguments regarding Dunbar (page 15-17 of remarks), Kikumoto (page 18-19), and Gross (page 21-22) failing to teach the limitations of claim 1, as said references were used as teaching references found obvious to combine with primary reference Vartiainen. Applicant argues that Vartiainen discloses positions for the insert but not removability and replacement through the pocket opening. The examiner finds this argument non persuasive. The examiner notes that Vartiainen discloses an opening into the pocket of the device, where an insert is located within. Upon combination with Dunbar it was found obvious to use a washable pad (and thus removable and insertable) as the pad of the device of Vartiainen. Therefore as the pocket has an opening for accessing the inside of the pocket where the absorbent pad is removable and washable, it is interpreted that removing or inserting the pad would be done through the pocket opening, as this is the access point into the pocket. Applicant further argues that the examiner cites the first side panel, second side panel and front portion of Vartiainen to read to the left front, right front, and pelvic portion of the instant application and thus Vartiainen fails to teach an upper edge of the front and rear portion comprise a waist band. The examiner respectfully disagrees. The examiner notes that per the rejection of claim 1, previously provided, the examiner points to reference (9), referred to as the front panel in Vartiainen as the front portion of the instant claims, where said front panel further comprises the portions including the left and right front panel. As such it is interpreted that Vartiainen reads to the amended claim 1. The rejection has been updated for clarity.
Regarding the combination of Vartiainen and Dunbar to teach that the insert of Vartiainen is washable, the applicant argues that Dunbar teaches that the washable removable pad is presented as an optional alternative to an integrated construction. The examiner notes that the component of Vartiainen is disclosed to be an insert and as Dunbar teaches that inserts are known in the art to be removable and washable, with the motivation of reducing cost and being more environmentally friendly, since the insert is reusable, there is sufficient motivation to use a washable insert as the insert of Vartiainen. The examiner further upholds that the insert of Vartiainen may be washable alone, as washable is broad language, but provided the Dunbar reference as a teaching reference to further show that washable inserts are known to one of ordinary skill in the art. Applicant argues that said combination further relies on hindsight, but for the reasons provided above, the examiner disagrees. Further, in response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). The examiner notes that as the reconstruction is done on an absorbent article, by teachings from a secondary art, where said secondary art is also an absorbent article, the knowledge was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure. As such the reconstruction is proper.
Regarding the combination of Vartiainen and Kikumoto to teach that an outer layer of the pocket is absorbent, applicant argues that Kikumoto’ s structure is purpose build around a disposable urine pouch that is sealed in use. The examiner notes that as Vartiainen teaches a fluid collection device comprising a urine pouch that is sealed in use there is sufficient reasoning to combine. Kikumoto teaches that the configuration of an incontinence pouch comprises an absorbing layer, impermeable outer layer and breathable backsheet. As detailed in the previous office action, it would have been obvious to combine this three layer combination for the pouch of Vartiainen as Vartiainen discloses the pouch structure where the front and back sheet may be made from both multiple and different materials. This does not require a relayering of the pouch wall by importing Kikumoto, rather since the disclosure of Vartiainen discloses various configurations including multiple different layers, the combination is merely using a known technique to modify a similar device in the same way and achieves the predictable result of forming a urine collection pocket in an absorbent article. As such the argument is found to be nonpersuasive.
Regarding the combination of Vartiainen and Gross to teach that the absorbent has a wicking layer, applicant argues that the simple substitution rationale provided depends on the assumption that Gross is washable merely because it discloses a wicking and storage layers. The examiner respectfully disagrees. The simple substitution rationale lays out why the substitution of the layer of Vartiainen for the layer of Gross would be obvious to one having ordinary skill in the art. The examiner notes that 1) the term washable remains broad and therefore the insert of Vartiainen may be washed, and is thus washable and 2) the argument is moot in view of Dunbar, which teaches that washable absorbents are known in the art and was previously combined in the rejection of claim 1. Further, applicant argues that said combination relies on hindsight, which the examiner disagrees with for the reasons stated in the same paragraph above. Applicant further argues that Gross explains functional interdependence and fluid communication relationships between the layers of the integrated product, but the examiner finds this argument nonpersuasive as the obvious combination in view of simple substitution provided is merely using a known absorbent configuration for another absorbent configuration known in the art and would still achieve the predictable result of absorbing and storing fluid. As such said combination would further not require substantial redesign, as argued by the applicant. Per page 23 of the arguments, applicant argues further that Gross is not a garment pocket system at all and thus there is no motivation to combine. As detailed previously in the same paragraph, the simple substitution is merely taking the known configuration of just the absorbent layer and providing Vartiainen’ s absorbent with said configuration. As both are absorbent core configuration, the argument that Gross does not teach the entire structure of Vartiainen is moot since that is not required in the obviousness combination.
Said combinations above are “abandoning Vartiainen’ s repeated ‘liquid impermeable pouch’ feature in favor of described approach used by other references”, rather the combinations are using teaching of materials and layer configurations known in the art to modify a similar device (fluid pocket in view of Kikumoto, absorbent core in view of Gross) in the same manner while still achieving predictable results, that being the intended function of fluid absorption in an absorbent article. The applicant argues that Vartiainen teaches a fluid impermeable pouch and thus modifying the pouch to be an absorbent pocket is improper. The examiner agrees that Vartiainen discloses an impervious outer layer (see previous office action page 6, lines 7-10). The examiner follows by saying that Vartiainen’ s inner and outer sheets (the impervious sheet) may comprise multiple layers made from the same or different materials (para. 0038). Further the examiner provides Kikumoto to teaches a layered pouch where the outermost layer comprises a structure consisting of a moisture absorbing layer, an impermeable outer layer and a breathable backsheet. The examiner uses this teaching, along with the disclosure of Vartiainen to state that would of ordinary skill in the art would have found it obvious to apply to multilayer structure taught by Kikumoto (where the outermost layer is impermeable and further comprises an inner absorbent layer, to the impermeable outer layer of Vartiainen (capable of comprising multiple layers of different material). Said combination still consists of an outermost impermeable layer, but also provides further protection against leaks and retention of liquid within the pocket. Thus there is sufficient motivation to combine the teachings.
Applicant further argues that the combination fails required motivation and reasonable expectation of success, as said combination would disrupt the functional relationships each reference depends on. The applicant argues that the devices of the prior art separately and as a whole would not allow for combination, however, as stated repeatedly in the response to arguments section above, the combinations are using teaching of materials and layer configurations known in the art to modify a similar device (fluid pocket in view of Kikumoto, absorbent core in view of Gross) in the same manner while still achieving predictable results, that being the intended function of fluid absorption in an absorbent article, not merging all the devices as a whole into one device as argued by the applicant (remarks page 24 line 1-2).
Per page 24, lines 3-5, applicant argues that the examiner’s position relies on treating “analogous art” as a substitute reason to combine and common-sense bridging of gaps in references. The examiner respectfully disagrees. Each of the obvious prior art rejections are provided with a motivation for combining. As previously stated, the combinations are using teaching of materials and layer configurations known in the art to modify a similar device (washing an absorbent insert in view of Dunbar, fluid pocket in view of Kikumoto, absorbent core in view of Gross) in the same manner while still achieving predictable results, that being the intended function of fluid absorption in an absorbent article, thus establishing a prima facie case of obviousness for the prior arts.
Lastly, applicant argues that that Gross is directed to disposable products and the wicking materials are optimized for single-use absorbency and stiffness control, not durability, so when subjected to laundering, the materials would disintegrate and fail to perform. While the examiner agrees here, the rejection has been updated in view of Oprita to overcome this argument.
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.
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) 1-6,8-9,11,13-15,17,20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Vartiainen US 2013/0218118 in view of Dunbar et al. US 2014/0039432, Kikumoto US 2011/0077610, and Oprita et al. US 2011/0213327 , hereafter Vartiainen, Dunbar, Kikumoto, and Oprita, respectively.
Regarding claim 1, Vartiainen discloses
An undergarment comprising (figs. 1,2,7): an absorbent insert (7); and a main body (fig. 2) comprising a front portion (front panel (9)) and a rear portion (rear panel (10)) opposite to the front portion (see figure 2), the front portion comprising a left front portion (first side panel (12)), a right front portion(second side panel (13)), and a pelvic portion (front portion (14) seen between left (12) and right panel (13)) and on the front panel (9))adjoining the left front portion and the right front portion, the pelvic portion comprising a pocket for retaining the insert therein (pocket (8), see retaining absorbent in figure 7)), the pocket being defined by a pocket outer wall (outer sheet (5)) and a pocket inner wall (inner sheet 6)), the pocket inner wall being at least water-resistant (para. 0006, see claim 1, where the inner and outer sheet are impermeable), the pocket inner wall being proximal to a wearer when the undergarment is worn, the pocket inner wall having a face defining a central opening (opening (17), see para. 0039) above a lower portion of the face (opening 17 seen to be central to the inner sheet face), the central opening being sized to allow for insertion and removal of the insert from the pocket. The examiner notes that as the opening is size for inserting male genitals into the pouch and the absorbent insert is placed inside the pouch, it is interpreted that the opening is sized to allow for the insert to be placed or removed within the pocket.
Although washable is broad language and it may be interpreted that the insert of Vartiainen could be washed and is therefore washable, in an effort for compact prosecution the examiner brings in reference Dunbar to teach this limitation.
Dunbar teaches an absorbent article and is thus considered analogous to the claimed invention. Dunbar teaches that the undergarment may comprise an insertable pad, where said pad is washable to reduce the wearer’s cost and to provide an environmentally friendly alternative (para. 0010). Therefore as a means to aid in reducing the wearer’s cost as well as being more environmentally friendly, it would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to make the insert of Vartiainen washable.
The examiner notes that as previously stated in the rejection of claim 1, both the outer and inner sheet forming the pouch are disclosed to be impermeable. Thus there is no explicit disclosure that the pocket outer was is absorbent. Vartiainen however does teach that both the inner and outer sheets may be comprised of multiple layers made from the same or different materials (para. 0038).
Kikumoto teaches a male incontinence pouch and is thus considered analogous to the claimed invention. Kikumoto teaches that pouch (30) is made from layers of material (see figure 2a and 2b), where said layers include a moisture absorbing layer (260), moisture impermeable outer layer made from a moisture impermeable or liquid resistant material (270), and breathable backsheet (280) (see para. 0036). Per Kikumoto (abstract, para. 0017, 0033) this configuration allows for comfort and holding/absorption of fluid within the pouch while preventing leakage to the outside. Therefore, as Vartiainen teaches a fluid impermeable pouch where both the front and back sheet may be made from multiple layers of different materials, it would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to provide the three layer configuration, including the absorbing layer, of Kikumoto as the multilayer structure of at least the outer sheet of Vartiainen as a means to both aid in absorption, prevent leakage, and remain breathable. As a result of this combination, the outer sheet comprise an absorbent layer and is thus is at least partially absorbent and would retain liquid within the pocket. See also para. 0010 of Vartiainen
The examiner notes that while the central opening allowing for liquid to be deposited directly on the absorbent in the pocket (para. 0038 of Vartiainen), the absorbent is not disclosed to have a wicking layer.
Oprita teaches an absorbent insert and is thus considered analogous to the claimed invention. Oprita teaches that the insert (figure 3) comprises a series of absorbent layers (8,9,10), and an impermeable layer (7) configured to prevent wicking between adjacent absorbents (the device comprises three multilayer absorbents (see figures 2) (para. 0041). The examiner notes that as the impermeable layer prevents wicking, it is interpreted that all three layers (8,9,10) are wicking layers, and are further configured to absorb and retain fluid (as taught in para. 0041). As such the structure of the insert comprises at least one absorbent layer sandwiched between two wicking layers, where the wicking layers control fluid flow in the insert. As the absorbent is between the two wicking layers, it is interpreted that fluid would at least be drawn to the sandwiched absorbent layer. Further, Oprita teaches that the insert, as detailed above, is reusable (para. 0035), and washable (para. 0065). Therefore, as Oprita teaches that absorbent insets comprising wicking layers are used in the art to control fluid flow and absorb and hold fluid within an absorbent article, where said insert is independently removable and washable, it would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to use the insert structure of Oprita as the structure for the insert of Vartiainen as a matter of simple substitution, as said substitution would have yielded predictable results, namely, absorption and storage of fluid as well placement within a space created by an absorbent article.
Per the amendments filed 01/08/2026, claim 1 now requires that the insert -comprises a plurality of insert absorbent layers sandwiched between insert wicking layers comprising the first inset wicking layer and a second insert wicking layer, the insert wicking layers being configured to draw liquids toward the plurality of insert absorbent layers. As detailed above under the same rejection, it was found obvious to use the absorbent core of Gross as the structure of the absorbent core of Vartiainen, where Gross figure 1 teaches the core comprises an absorbent layer (12) sandwiched between two insert wicking layers (11 and 13), the insert wicking layers being configured to draw liquids toward the plurality of insert absorbent layers (para. 0085 of Gross).
This combination of arts as presented however, fails to teach that the absorbent layer comprises a plurality of absorbent layers. The examiner notes that per MPEP 2144.04 (VI) (B), the court held that mere duplication of parts has no patentable significance unless a new and unexpected result is produced. Therefore, as the Vartiainen in view of Gross teaches an absorbent layer sandwiched between two wicking layers, and it has been found that mere duplication of parts (i.e. adding an extra layer of the same material in the instant case) has no patentable significance unless a new or unexpected result is produced, it would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to provide at least a second absorbent layer between the two wicking layers, as a matter of obviousness duplication of parts.
Further said 01/08/26 amendments require an upper edge of the front portion and the rear portion comprises a waist band.
The examiner notes that per the rejection previously presented, Vartiainen discloses the front panel (9) and rear panel (10), where the device further comprises first side panel (12) interpreted to form at least part of the left front portion, second side panel (13) interpreted to form at least part of the right front portion, and front portion (14) interpreted to form the pelvic portion. The examiner notes that as seen in figure 1,2, these side panels are configured to form a waist portion of the device and extend between the front and rear panels (9 and 10). As these components form an structure, configured to form a waist opening (para. 0018), they are interpreted to be a waist band. As seen in figure 2, both the front and rear portion comprise or connect to the side panels (12 and 13) at an upper (or outermost edge), and thus are interpreted to read to the claimed invention.
Regarding claim 2, Vartiainen, Dunbar, Kikumoto, and Oprita teach
The undergarment of claim 1, wherein the lower portion of the face and the pocket outer wall forms a liquid collecting area. The examiner notes that as seen in figure 7 of Vartiainen and the per the rejection of claim 1, the defined the lower face and pocket outer wall form the pocket in which liquid is collecting, thus a liquid collecting area.
Regarding claim 3, Vartiainen, Dunbar, Kikumoto, and Oprita teach
The undergarment of claim 2, wherein: the pocket comprises a perimeter (interpreted as the edges of the inner and outer sheet forming the pocket); and the pocket is enclosed along the perimeter (para. 0015,0052 of Vartiainen). Per paragraph 0015, the inner and out sheet (forming the pocket) are attached to one another via the first and second upper ends and the lower ends. Further, per para. 0052 of Vartiainen, the upper ends of the sheets for forming the pocket are attached to each other using suitable attachment means including, but not limited to, gluing, welding, or mechanical fastening.
Regarding claim 4, Vartiainen, Dunbar, Kikumoto, and Oprita teach
The undergarment of claim 3, wherein the pocket inner wall is bonded to the pocket outer wall along the perimeter of the pocket. The examiner notes that as detailed under the rejection of claim 3, any suitable attachment means is used to attach the inner and outer sheet forming the pocket together, including gluing or welding, interpreted as bonding.
Regarding claim 5, Vartiainen, Dunbar, Kikumoto, and Oprita teach
The undergarment of claim 4. While Vartiainen in view of Kikumoto, as applied under the rejection of claim teach that the defined water-resistant layers may be made from a liquid impermeable or resistant material (Kikumoto para. 0036), the combination fails to teach wherein the pocket inner wall comprises a plurality of said layers bonded together. However, the examiner notes that per MPEP 2144.04 (VI) (B), the court held that mere duplication of parts has no patentable significance unless a new and unexpected result is produced. Therefore, as the Vartiainen in view of Kikumoto teaches the inner wall comprises a liquid impermeable or resistant material, and it has been found that mere duplication of parts (i.e. adding an extra layer of the same material in the instant case) has no patentable significance unless a new or unexpected result is produced, it would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to provide at least a second water resistant or impermeable layer with the water resistant or impermeable layer of Vartiainen and Kikumoto, as a matter of obviousness duplication of parts.
Regarding claim 6, Vartiainen, Dunbar, Kikumoto, and Oprita teach
The undergarment of claim 5, wherein the plurality of water-resistant layers extend across the entirety of the pocket inner wall between the perimeter and the central opening. The examiner notes that as detailed under the rejection of claim 1, the layers of Kikumoto, obviously combined with Vartiainen per said rejection of claim 1, would comprise the entire inner pocket structure and thus would extend between the perimeter and central opening.
Regarding claim 8, Vartiainen, Dunbar, Kikumoto, and Oprita teach
The undergarment of claim 5, wherein each layer of the plurality of water-resistant layers is at least water-repellent. The examiner notes that per the rejection of claim 1 and claim 5, Kikumoto paragraph 0036 teaches that the defined water-resistant layers may be made from a liquid impermeable or resistant material. As such it is interpreted that the impermeable layers of the combination of art are at least water repellant due to their impermeable properties.
Regarding claim 9, Vartiainen, Dunbar, Kikumoto, and Oprita teach
The examiner notes that per the rejection of claim 1 and claim 5, Kikumoto paragraph 0036 teaches that the defined water-resistant layers may be made from a liquid impermeable or resistant material. As such it is interpreted that the impermeable layers of the combination of art are at least waterproof due to their impermeable properties.
Regarding claim 11, Vartiainen, Dunbar, Kikumoto, and Oprita teach
The undergarment of claim 10, but as previously applied, fails to teach wherein each of the insert wicking layers comprise a knitted twill fabric.
Dunbar however, does teach this limitation. Dunbar teaches that the device comprises wicking layers, where said layers of both an insertable pad and undergarment may be made of conventional knitted fabrics materials, including SPANDEX, silk, cotton, and more, and may be manufactured from any conventional stitching approaches for fabrics (para. 0034). Therefore, as Dunbar teaches that wicking layers in absorbent articles may be made from conventionally knitted SPANDEX, it would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to use said SPANDEX as the wicking material of the prior art combination, as a matter of simple substitution, as said substitution would have yielded predictable results, namely, absorption and storage of fluid as well placement within a space created by an impermeable backsheet. Per the 112b interpretation of knitted twill fabric, a knitted spandex or polyester would read to the claimed limitation.
Regarding claim 13, Vartiainen, Dunbar, Kikumoto, and Oprita teach
The undergarment of claim 10, wherein the insert is reversible. The examiner notes that as the absorbent core, as described under the rejection of claim 1, and as seen in figure 1 of Gross, comprises an absorbent layer (12) sandwiched by two wicking layers (11 and 13), reversing the core (i.e. swapping layers 11 and 13) would still provide the same structure (absorbent core sandwiched by two wicking layers) and thus the function would not change. As such, it is interpreted that the absorbent core of the prior art is reversible.
Regarding claim 14, Vartiainen, Dunbar, Kikumoto, and Oprita teach
The undergarment of claim 1, wherein: the pocket outer wall comprises at least a pocket wicking layer, a pocket lining layer, and at least one pocket absorbent layer between the pocket wicking layer and the pocket lining layer, the pocket wicking layer being configured to draw liquids toward to the at least one pocket absorbent layer, the pocket lining layer being at least water-resistant and configured to reduce liquid egress from the pocket outer wall.
The examiner notes that as detailed under the rejection of claim 1, Kikumoto teaches that pouch (30) is made from layers of material (see figure 2a and 2b), where said layers include a moisture absorbing layer (260), moisture impermeable outer layer made from a moisture impermeable or liquid resistant material (270), and breathable backsheet (280) (see para. 0036). It was found obvious to provide the three layer configuration, including the absorbing layer, of Kikumoto as the multilayer structure of at least the outer sheet of Vartiainen as a means to both aid in absorption, prevent leakage, and remain breathable. The examiner notes that the pocket lining layer is interpreted as the moisture impermeable outer layer (270), the pocket absorbent layer is interpreted as the absorbing layer (260), and the pocket wicking layer is interpreted as the breathable backsheet (280), as said backsheet is made from a highly porous material and can be seen overlying the absorbent layer, thus directing fluid into said absorbing layer. As seen in figure 2A and 2B of Gross the absorbent layer is located between the defined wicking and lining layer and thus the combination would read to the claimed limitation.
Regarding claim 17, Vartiainen, Dunbar, Kikumoto, and Oprita teach
The undergarment of claim 14, While Vartiainen in view of Kikumoto, as applied under the rejection of claim teach that the defined lining layer may be made from a liquid impermeable or resistant material (Kikumoto para. 0036), the combination fails to teach wherein the lining layer comprises a plurality of said layers bonded together. However, the examiner notes that per MPEP 2144.04 (VI) (B), the court held that mere duplication of parts has no patentable significance unless a new and unexpected result is produced. Therefore, as the Vartiainen in view of Kikumoto teaches the inner wall comprises a liquid impermeable or resistant material, and it has been found that mere duplication of parts (i.e. adding an extra layer of the same material in the instant case) has no patentable significance unless a new or unexpected result is produced, it would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to provide at least a second water resistant or impermeable layer with the water resistant or impermeable layer of Vartiainen and Kikumoto, as a matter of obviousness duplication of parts. wherein the pocket lining layer comprises a plurality of water-resistant layers bonded together.
Regarding claim 20, Vartiainen, Dunbar, Kikumoto, and Oprita teach
The undergarment of claim 1. The examiner notes that as the article of Vartiainen is generally configured for usage for males and is configured to be worn as an undergarment, it is interpreted to be a brief (see figure 6 of Vartiainen).
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Vartiainen in view of Dunbar, Kikumoto, Oprita and further in view of Benz et al. US 2018/0221216, hereafter Benz.
Regarding claim 7, Vartiainen, Dunbar, Kikumoto, and Oprita teach
The undergarment of claim 5. The prior art, per the rejection of claim 1, uses polypropylene as the material of the water resistant layers, and therefore does not teach wherein the plurality of water-resistant layers comprise polyurethane.
Benz teaches an absorbent article and is thus considered analogous to the claimed invention. Benz teaches the inclusion of an impermeable layer to prevent fluid flow through, where said layer is made from polypropylene and/or polyurethane sheets (para. 0115). Therefore, as Benz teaches that suitable materials for impermeable layers in absorbent articles include both polypropylene and polyurethane, it would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention, as a matter of simple substitution, to use polyurethane in place of polypropylene for the impermeable layer of the prior art combination, as the substitution of polyurethane is substituting one known material for another where said substitution would have yielded predictable results, namely, water resistance in a layer.
Claim(s) 12,16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Vartiainen in view of Dunbar, Kikumoto, Oprita, and further in view of Labit US 2011/0319852, hereafter Labit.
Regarding claim 12, Vartiainen, Dunbar, Kikumoto, and Oprita teach
The undergarment of claim 10, but fails to specifically teach wherein each of the plurality of insert absorbent layers comprise a microfiber loop terry fabric.
Labit teaches an absorbent article and is thus considered analogous to the claimed invention. Labit teaches that the device absorbent layers, where said layers may be made from microfibers or any suitable material to absorb and store liquids (para. 0061). Per para. 0061, Labit further teaches that one such example is microfiber terry. Therefore, as Labit teaches that absorbent layers in absorbent articles may suitably be made from microfiber terry, or any material capable of absorbing and storing fluid, it would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to use said microfiber terry as the absorbent material of the prior art combination, as a matter of simple substitution, as the substitution of microfiber terry is substituting one known material for another where said substitution would have yielded predictable results, namely, water absorption and storage in a layer.
Regarding claim 16, Vartiainen, Dunbar, Kikumoto, and Oprita teach
The undergarment of claim 14, but fails to specifically teach wherein each of the at least one pocket absorbent layer comprises a microfiber loop terry fabric.
Labit teaches an absorbent article and is thus considered analogous to the claimed invention. Labit teaches that the device absorbent layers, where said layers may be made from microfibers or any suitable material to absorb and store liquids (para. 0061). Per para. 0061, Labit further teaches that one such example is microfiber terry. Therefore, as Labit teaches that absorbent layers in absorbent articles may suitably be made from microfiber terry, or any material capable of absorbing and storing fluid, it would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to use said microfiber terry as the absorbent material of the prior art combination, as a matter of simple substitution, as the substitution of microfiber terry is substituting one known material for another where said substitution would have yielded predictable results, namely, water absorption and storage in a layer.
Claim(s) 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Vartiainen in view of Dunbar, Kikumoto, and Oprita, and further in view of Zmatlik et al. US 3885601
Regarding claim 15, Vartiainen, Dunbar, Kikumoto, and Oprita teach
The undergarment of claim 14, but as previously applied, fails to teach wherein the pocket wicking layer comprises a knitted twill fabric. The examiner notes that per the citation of Oprita above (para. 0041) the defined wicking layers may be made of a “suitable material”. No disclosure of a knitted twill is mention. Dunbar, as cited above, teaches that the device comprises wicking layers, where said layers of both an insertable pad and undergarment may be made of conventional knitted fabrics materials, including SPANDEX, silk, cotton, and more, and may be manufactured from any conventional stitching approaches for fabrics (para. 0034). While Dunbar teaches that suitable fabrics for absorbent articles include knitted fabric, no specific knitted twill is disclosed.
Zmatlik teaches a knit woven fabric suitable for underwear (column 2, line 60-65) and is thus considered analogous to the claimed invention. Zmatlik teaches that a knit-woven twill fabric is a known fabric construction (abstract, column 2 lines 20-65) usable for garments including underwear (column 2 line 60-65). Therefore, as the combination of arts previously applied teach that conventional knit fabrics from any conventional stitching approach are suitable for absorbent articles, it would have been obvious to one having ordinary skill in the art to use the knit-woven twill as the fabric for the wicking layers of the prior art combination, as said knit-woven twill is a fabric and technique known in the art. Said combination would merely require some teaching, suggestion, or motivation in the prior art (knitted fabrics using conventional methods are suitable for absorbent articles and inserts combined with a known knitted fabric and technique) that would have led one of ordinary skill to modify the prior art reference or to combine prior art reference teachings to arrive at the claimed invention, and thus a prima facie case of obviousness exists.
Claim(s) 18,19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Vartiainen in view of Dunbar, Kikumoto, and Oprita, and further in view of Nihlstrand et al. US 2003/0153227 hereafter Nihlstrand.
Regarding claim 18, Vartiainen, Dunbar, Kikumoto, and Oprita teach
The undergarment of claim 1, but fails to teach wherein the waist band is an elastic waist band.
Nihlstrand teaches an absorbent article and is thus considered analogous to the claimed invention. Nihlstrand teaches that an elastic element (127) may be provided on an absorbent undergarment waist (see figure 1) to allow for a certain degree of extensibility and conformability in addition to acting as a sealing means against waist leakage (para. 0118). Therefore, as a means to help prevent waist leakage and allow for greater conformability of the undergarment, it would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to include an elastic element in the waist band of Vartiainen.
Regarding claim 19, Vartiainen, Dunbar, Kikumoto, and Oprita teach
The undergarment of claim 1, wherein the left front portion, the right front portion, and the rear portion comprise at least one of a breathable (para. 0010, 0038) but fails to teach a biodegradable fabric.
Nihlstrand teaches an absorbent article and is thus considered analogous to the claimed invention. Nihlstrand teaches that commonly, materials such as polypropylene, polyester, and more, are used for absorbent articles (para. 0124). Nihlstrand teaches that alternatively, biodegradable polymers such as polylactides are also useful in absorbent articles (para. 0124). Therefore, as Vartiainen, in view of Gross teach polypropylene as a material for use with the absorbent article (See claim 1 rejection), and Nihlstrand teaches that biodegradable polylactides may be a suitable material to use instead of polypropylene, it would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to use polylactides as the material of the device of the prior art combination, as a means of simple substitution of one known material for another known material in the art.
Conclusion
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/MATTHEW WRUBLESKI/Examiner, Art Unit 3781
/ARIANA ZIMBOUSKI/Primary Examiner, Art Unit 3781