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the 11b rejection of claim 1 and 10 (and dependents via dependency) and as such the 112b rejection of said claims is withdrawn. The 112b rejection of claim 11 and 15 is withdrawn, see response to arguments below.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 05/20/2026 have been fully considered. As detailed below, the arguments are not persuasive.
Applicant argues that Vartiainen cannot be correlated to the claimed pocket because the claimed pocket is an enclosed space defined between bonded pocket walls along a continuous perimeter for retaining the washable insert. The examiner notes that from the previously cited figures (figure 1,7) the pouch (8) can be seen forming a continuous space for the insert. See also para. 0043, where the pouch layers are attached to the sheet structure. Paragraph 0010 states that the pouch can hold liquid, thus further indicating that the pouch is enclosed. Applicant further argues that Vartiainen does not disclose that the pouch is configured such that, instead of genitalia, a washable insert is inserted into, removed from, and retained within the enclosed space. The examiner notes that the pouch does comprises an absorbent insert within the pocket (absorbent 7), but fails to teach that said insert is removable and washable. As such, Dunbar was used to teach that absorbent inserts may be removed, washed, and reused. Applicant argues that “Vartiainen’ s pouch is not disclosed to enclose and retain the absorbent body therein”, which the examiner disagrees with in view of figure 7 of Vartiainen.
Applicant further argues that Vartiainen’ s genital opening is not the claimed insert access opening. Applicant argues that the opening (17) is for receiving male genitals not an opening for a washable absorbent insert. Applicant argues that the interpretation provided by the examiner (where the opening sized for insertion of the user’s genitals thus allows for access into the pouch and in view of Dunbar would readily allow for access to the removable insert) is unsupported by Vartiainen and uses hindsight. Applicant follows by saying that the opening is not intended (sized, shaped, etc.) for removing the absorbent body. While the examiner does not necessarily disagree that Vartiainen is silent to this, the claim merely requires the opening sized to allow for access into the pocket to position/remove the absorbent within. The examiner notes that the opening, at its widest (23a see figure 1 of Vartiainen) allows for access into the pocket. The examiner notes that as Vartiainen, readily combined with Dunbar, such that it would have been obvious to use a washable reusable absorbent insert, would reasonably be positioned through the opening into the pocket, as this is the only opening as seen in figure 1. The examiner notes that although applicant argues that Vartiainen states that the absorbent may be located outside the pouch and thus the construction that the pouch requires the retention of the insert is incorrect, this argument is non-persuasive as the embodiment cited (see figure 7) clearly defines the absorbent fully within the pouch. Therefore, even though the absorbent may only be partially within the pouch, an alternative embodiment has the absorbent completely within the pouch, and thus said embodiment was used to reject the claim.
Applicant further argues that Vartiainen fails to disclose the amended relationship between the central opening and the insert wicking layer. The examiner notes that this argument is found to be nonpersuasive as urine would pass through the genitalia, located in the opening and further into the pouch. Should applicant assert that urine itself must pass through the opening, the examiner asserts that this is functional language. The examiner notes that per MPEP Section 2114 II "[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987) (The preamble of claim 1 recited that the apparatus was "for mixing flowing developer material" and the body of the claim recited "means for mixing ..., said mixing means being stationary and completely submerged in the developer material." As Vartiainen teaches an opening for directing urine into a pocket containing an absorbent, and where said opening is sized to fit a male genital (thus large enough to at least have fluid pass through), where the flowing of urine through the opening is interpreted as functional language, it is interpreted that the prior art teaches all the structural limitations and thus reads to the claimed limitation.
Applicant argues that Dunbar’s pad does not replace Vartiainen’ s absorbent body as Vartiainen absorbent is part of a liquid impermeable pouch that may be positioned partly or completely outside the pouch, and that the opening of Vartiainen does not allow for access of inserting and removing the absorbent. The examiner finds these arguments non-persuasive as Vartiainen (figure 7, and as detailed above under the arguments) has embodiments in which the pad is positioned completely within the pouch. Applicant's assertion that the pad may be external to the pouch does not take away from the fact that the absorbent may, in other embodiments, be entirely within the pouch. Further the opening allows for access into the pouch thus inserting and removing the absorbent through the opening is again interpreted to be functional language where the prior art teaches all the structural limitations (As detailed above per MPEP 2114)) and thus the prior art reads to the claimed limitation.
Applicant argues that Dunbar uses a cut-out to insert the pad not a central opening, and that Dunbar fails to teach an enclosed pelvic pocket and does not cure the central opening relationship. The examiner notes that the arguments are moot in view of combination with Vartiainen, in which a central opening is provided with said relationship, and the pocket is provided. Applicant challenge Dunbar alone and thus the arguments are not persuasive.
Applicant argues that Kikumoto’ s “similar urine pouch” construction by the examiner is overly broad. Applicant argues that “examiner’s rationale treats any urine-collecting pouch as interchangeable with Vartiainen’ s specific liquid-impermeable genital pouch” and that the pouch systems are materially different in that Kikumoto comprises a flap opening for inserting a hand to guide the genitalia into the pouch through a slit. The examiner finds this argument to be non-persuasive as the flap of Kikumoto is not relied upon in the combination. Rather, the combination was used to show that a pouch for inserting male genitalia into may suitably be made of the materials/layers as taught in Kikumoto, and therefore as Vartiainen discloses a pouch for inserting male genitalia into to collect and absorb urine. Where the device of Kikumoto employs the same function of inserting a user’s genitalia into and collecting urine, it would have been obvious to one having ordinary skill in the art to use said suitable materials of Kikumoto as the materials of the pouch of Vartiainen as said materials are suitable for the same function. As such there is no functional difference associated with modifying known materials in the art (for a urine collection pouch) with known materials in the art (Also for a urine collection pouch) as asserted by applicant in page 21.
Applicant argues that Kikumoto does not teach the claimed water-resistant pocket inner wall (page 20-21) but the examiner argues that the previous rejection provided how this limitation was interpreted and rejected.
Applicant argues that Oprita is not directed to the claimed undergarment pocket structure. This argument is not persuasive as Oprita is used in combination to teach the structure of the insert. Vartiainen teaches the pocket.
Applicant argues that Oprita is materially different from the amended claim 1 as claim 1 describes absorbent/storage layers, not opposed insert wicking layers sandwiching a plurality of insert absorbent layers. The examiner cited Oprita saying that the impermeable layer (7) prevents wicking between absorbent layers (8,9,10). Thus, there is wicking occurring between the absorbent layers and they may reasonably be interpreted as wicking layers. As such, as layers 8 and 10 (interpreted as wicking layers due to fluid wicking between them) sandwich layer 9, disclosed to be an absorbent, it is interpreted that Oprita reads to the limitation (upon combination with the previous prior art).
Applicant argues that the simple substitution does not provide the claimed structure, but as detailed in the previous paragraph, the claimed structure is read to by Oprita. The relationship between the central opening is not detailed under Oprita, but Oprita is not used to teach this limitation as Vartiainen, the primary reference, teaches this limitation. The same reasoning applies to the arguments of page 24 that Oprita does not teach the claimed pocket, as Vartiainen is used to teach this limitation, where Oprita was merely combined to show a suitable construction of an absorbent insert.
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) 1-2,8-9,11,13-15,17,20 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 comprises 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 Oprita as the structure of the absorbent core of Vartiainen.
This combination of arts as presented however, fails to teach that the absorbent layer comprises a plurality of absorbent layers, where said absorbent layers are sandwiched between wicking 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 Oprita 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 a 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.
Per the amendments filed 05/20/2026, the examiner updates the rejection of claim 1 below.
Vartiainen discloses the pocket comprises a continuous 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. The examiner notes that the perimeter defines an enclosed pocket space for retaining the insert (See figure 7 of Vartiainen).
While Vartiainen in view of Kikumoto, as applied under the same rejection of claim 1 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. As said layers form the inner wall (As detailed above) it is interpreted that they extend across an entirety of the inner wall between the perimeter and the opening (as the inner wall exists between the two).
Applicant further amends to require the central opening “positioned to expose a first inner wicking layer corresponding to the insert through the pocket inner wall to allow for liquid to pass through the central opening and to be directly deposited on the first insert wicking layer corresponding to the insert while the insert is within the pocket. The examiner notes that in view of Oprita above, the absorbent comprises at least a wicking layer. The examiner notes that in use, Vartiainen inserts a user’s genitalia through the central opening such that the user can urinate into the pouch and on to the absorbent (as the absorbent is within the pouch). Therefore, it is interpreted that the central opening exposes a first wicking layer of the absorbent (as the opening allows for genitalia to be inserted) and allows for liquid to pass through (through the genitalia) and onto the absorbent (thus onto the wicking layer). Should applicant assert that urine itself must pass through the opening, the examiner asserts that this is functional language. The examiner notes that per MPEP Section 2114 II "[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987) (The preamble of claim 1 recited that the apparatus was "for mixing flowing developer material" and the body of the claim recited "means for mixing ..., said mixing means being stationary and completely submerged in the developer material." As Vartiainen teaches an opening for directing urine into a pocket containing an absorbent, and where said opening is sized to fit a male genital (thus large enough to at least have fluid pass through), where the flowing of urine through the opening is interpreted as functional language, it is interpreted that the prior art teaches all the structural limitations and thus reads to the claimed limitation.
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 8, Vartiainen, Dunbar, Kikumoto, and Oprita teach
The undergarment of claim 1, 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, 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, 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 3 of Oprita, comprises an absorbent layer (9) sandwiched by two wicking layers (8 and 10), reversing the core (i.e. swapping layers 8 and 10) 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 3 of Oprita 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 1. 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 the prior arts applied 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
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/MATTHEW WRUBLESKI/Examiner, Art Unit 3781
/ARIANA ZIMBOUSKI/Primary Examiner, Art Unit 3781
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