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Patent Application 18189313 - Reusable Swim Diaper - Rejection

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Patent Application 18189313 - Reusable Swim Diaper

Title: Reusable Swim Diaper

Application Information

  • Invention Title: Reusable Swim Diaper
  • Application Number: 18189313
  • Submission Date: 2025-05-14T00:00:00.000Z
  • Effective Filing Date: 2023-03-24T00:00:00.000Z
  • Filing Date: 2023-03-24T00:00:00.000Z
  • National Class: 604
  • National Sub-Class: 385150
  • Examiner Employee Number: 77693
  • Art Unit: 3781
  • Tech Center: 3700

Rejection Summary

  • 102 Rejections: 0
  • 103 Rejections: 1

Cited Patents

The following patents were cited in the rejection:

Office Action Text


    
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 .

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.
Claims 1-2 are rejected under 35 U.S.C. 103 as being unpatentable over Beck et al. (US 2006/0070163) and further in view of Lassig (US 2019/0209394).
With reference to claim 1, Beck et al. (hereinafter “Beck”) discloses a reusable (i.e., washable) [0002] swim diaper [0003] configured for retaining fecal matter [0003], comprising: 
a main body made of a waterproof coated [0019] bonded [0030] polyurethane polyester material [0020] comprising a composite material made of one or more layers of polymer resins joined by urethane links (i.e., polyurethane) and a polyester backing [0017; claim 3], the main body configured with elasticized leg openings including gussets interior of the leg openings also made of the waterproof coated bonded polyurethane polyester material of the main body [0046], wherein the main body has improved degradation from laundering and is suitable for multiple launderings and reuse without degrade [0002], and together the material of the main body and the gussets serve to minimize the flow of fecal matter between the inside and the outside of the swim diaper as set forth in [0002-0004].
	The difference between Beck and claim 1 is the explicit recitation that the main body is configured with an elasticized waist opening.
	Lassig teaches an analogous reusable swim diaper (abstract) wherein the main body is configured with an elastic waist opening as set forth in [0023].
	It would have been obvious to one of ordinary skill in the art at the time of the invention to configure the diaper of Beck with an elasticized waist opening as taught by Lassig in order to help provide the article with a waterproof seal as taught by Lassig in [0008].
	With reference to claim 2, Beck teaches the invention substantially as claimed as set forth in the rejection of claim 1.
	The difference between Beck and claim 2 is the explicit recitation that the polyurethane polyester material is a polyurethane knitted polyester material and the polyester backing is a knitted polyester backing.
	Lassig teaches an analogous reusable swim diaper (abstract) wherein the polyurethane polyester material is a polyurethane knitted polyester material and the polyester backing is a knitted polyester backing as set forth in [0035], [0045], [0060] and [0067] .
	It would have been obvious to one of ordinary skill in the art at the time of the invention to provide the diaper of Beck with the polyurethane knitted polyester material and the knitted polyester backing as taught by Lassig for the benefit of the improved elasticity of the material as taught Lassig in [0037].

Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA  as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b). 
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-2 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-12  of copending Application No. 18/357,853 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because all of the limitations of claim 1 of the Application can be found in claims 1 and 8 of the reference application. 
The difference lies in the fact that the claims of the reference application are more specific than the claims of the instant application.
Since claim 1 of the Application is anticipated by claim 1 of the reference application, it is not patentably distinct from claim 1 of the reference application.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.





Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
WO 2008/146289 discloses the knowledge in that polyurethane is any polymer comprising a change of organic unites joined by urethane links.  See [00031].
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHELE M KIDWELL whose telephone number is (571)272-4935. The examiner can normally be reached Monday-Friday, 7AM-4PM EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Rebecca Eisenberg can be reached at 571-270-5879. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.





/MICHELE KIDWELL/Primary Examiner, Art Unit 3781                                                                                                                                                                                                        





    
        
            
        
            
        
            
        
            
        
            
    


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