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 Amendments and Arguments
The amendments, filed October 24, 2025, have been entered. Claims 1, 10, and 19 have been amended. Claim 21 has previously been cancelled. Claims 1-20 are currently pending in the application.
Applicant argues, on pages 7-8 of Applicant’s remarks with regard to the rejection of claims 1-20 under 35 U.S.C. 112(a), that paragraphs 0016 and 0039 of Applicant’s specification provide sufficient support for the limitation “a bottom panel removably attached to the cover sidewalls by a zipper or other fastener extending along the entire periphery of the sidewalls, such that the separate cover and the bottom panel together fully encapsulate the first and second foam layers and allow the bottom panel to be independently removed to provide access to the foam layers and vibrating units”. Examiner respectfully disagrees. As discussed in further detail in the rejection below, paragraph 0016 does not make any reference to the bottom panel of the topper cover, and is specifically directed to the fasteners provided on the mattress topper cover that enable the mattress topper cover to be removably attached to the underlying mattress core. While paragraph 0016 does discuss the ability to remove vibrating units for service and replacement, the removable bottom panel and peripheral zipper is not directly mentioned or otherwise alluded to. Paragraph 0039 notes the bottom panel 116 of the topper cover 108 may be fixedly or removably fastened to the to the sidewalls 112, but nowhere in this paragraph is it discussed that a zippered portion or other fastener extends around the entire periphery of the bottom panel of the mattress topper or that removing the mattress topper cover bottom panel specifically allows for the vibrating units to be removed for service and replacement.
Applicant argues, on page 8 of Applicant’s remarks, that the limitation of “the mattress cover” in lines 9-10 of claim 1 is not indefinite under 35 U.S.C. 112(b), and the claim fully describes the features of the cover. However, this limitation was not rejected to because the claim does not fully or clearly describe a cover. Claim 1 contains the limitations of a removable mattress topper, a separate cover for only the mattress topper, and a mattress core assembly. When the claim then introduces the specific terminology of “the mattress cover” in lines 9-10, there is some question as to whether this term is intended to refer to the limitation of the separate cover for only the mattress topper (which has been introduced in the claim) or if term refers to a different cover for the mattress core or mattress assembly as a whole, distinct from the separate cover for only the mattress topper. For examination purposes, it is assumed the “mattress cover” was intended to refer to the mattress topper cover, but the language of the claim remains somewhat ambiguous. As such, the rejection of claim 1, and all claims dependent therefrom, remain pending in the application.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the bottom panel being removably attached to the cover sidewalls by a zipper or other fastener extending along the entire periphery of the sidewalls and the opening being positioned to allow connection or disconnection of the power cord when the bottom panel is removed, as claimed in claims 1, 10, and 19, must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-20 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Independent claims 1, 10, and 19 contain the limitation “a bottom panel removably attached to the cover sidewalls by a zipper or other fastener extending along the entire periphery of the sidewalls, such that the separate cover and the bottom panel together fully encapsulate the first and second foam layers and allow the bottom panel to be independently removed to provide access to the foam layers and vibrating units” (emphasis added). However, in the application as filed, there is no support for this limitation.
Zippered portions are discussed in Applicant’s specification 0004 and 0005, which make reference to the bottom panel having a zippered portion “extending about at least a portion of a peripheral edge of the top panel, and the mattress core having a zippered portion around the peripheral edge of the top panel.” These zippered portions are used to connect the topper to the mattress core. No where in this section is a zippered portion discussed which extends around the entire periphery of the bottom panel and which removably attaches the bottom panel to the side walls.
Additionally, paragraphs 0026-0027 reference the bottom panel 54 of the mattress core cover, which may be attached to the top of the cover 56 via a zipper, but does not discuss a similar zipper for the mattress topper cover. Additionally, zippered portions 62 and 114 are discussed, but these zippered portions are provided to connect the topper to the mattress core, not the bottom panel of the topper cover to the sidewalls of the topper cover as required by the claims.
Finally, paragraph 0039 discusses the bottom panel 116 of the topper cover 108. The bottom panel is noted as being removably fastened to the to the sidewalls 112, but nowhere in this paragraph is a zippered portion discussed which extends around the entire periphery of the bottom panel of the mattress topper or that removing the mattress topper cover bottom panel specifically allows for the vibrating units to be removed for service and replacement (this feature is described in paragraph 0016, where it is attributed to the removability of the topper from the mattress core, not the removability of the mattress topper cover bottom panel). It is additionally noted that no such structure appears in the drawings as filed. Figure 4 appears to show structure which could possibly be a second zipper or other fastener located behind the zipper which connects the mattress topper to the mattress core, but the quality of the Figure does not allow for this structure to be properly identified, it is not further elaborated on described in the specification, and, regardless, the Figure does not show this potential zipper or other fastener extending around the entire periphery of the bottom panel. As such, the limitation of the bottom panel having a zippered portion extending about at least a portion of a peripheral edge of the top panel, and the mattress core having a zippered portion around the peripheral edge of the top panel is considered new matter. Claims 2-9, 11-18, and 20 are additionally rejected by virtue of their dependence on claims 1, 10, and 19.
Independent claims 1, 10, and 19 contain the limitation “the opening being positioned to allow connection or disconnection of the power cord when the bottom panel is removed”. However, in the application as filed, there is no support for this limitation. Support for the dedicated opening for the power cord is found in paragraph 0039. However, the only reference to this opening is “the cover further includes at least one opening for a power cord.” There is no disclosure in the specification or figures for this opening specifically being positioned to allow for connection or disconnection of the power cord when the bottom panel is removed, and, as such, is considered new matter. Claims 2-9, 11-18, and 20 are additionally rejected by virtue of their dependence on claims 1, 10, and 19.
Claims 1-9 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites the limitation "the mattress cover" in lines 9-10. There is insufficient antecedent basis for this limitation in the claim. For examination purposes, it is assumed the claim was intended to refer to the mattress topper cover.
Allowable Subject Matter
Claims 1-20 would be allowable if rewritten or amended to overcome the rejections under 35 U.S.C. 112(a) and 35 U.S.C. 112(b) set forth in this Office action. The following is a statement of reasons for the indication of allowable subject matter:
Regarding claims 1, 10, and 19, Lee (U.S. Publication No. 2012/0167311) discloses a removable mattress topper (paragraph 0043) comprising: a first foam layer 15 comprising a plurality of spaced apart vibrating units 24-26 embedded therein (in cavities 21, Figures 4 and 6, and see paragraph 0043 where the Lee contemplates another embodiment of the invention where the three layers of mattress 11 may be made thinner to form a mattress topper that fits over an end user’s existing mattress), wherein the vibrating units 24-26 are in electrical communication with a control module 27 and a power source (paragraph 0031, where a power cord 35 is inserted into a wall socket); a second foam layer (defined by the top foam layer of visco-elastic polyurethane foam, paragraph 0025) overlying the first foam layer 15, and a cover 40 encapsulating the first 15 and second foam layers (the second foam layer defined by the top foam layer of visco-elastic polyurethane foam, paragraph 0025, and see Figure 9 and paragraph 0043 which discusses outer cover 40 as applied to the mattress topper embodiment), wherein exposure of the bottom surface exposes the foam layers 15 and vibrating units 24-26 for cleaning, service, or replacement (paragraph 0036 and Figures 2, 4, 8, and 9).
An (U.S. Patent No. 7,757,322) is cited for teaching a separate cover (Figure 3) for only the mattress topper 50 encapsulating foam layer 30’ (Figure 3), the cover comprising a top panel, sidewalls extending from the top panel (see annotated Figure 3, below), and a zippered portion 60 extending about an entire periphery of the sidewalls configured to be engageable with a zippered portion of a mattress core assembly such that the mattress cover is removable relative to the mattress core assembly 10 (Figures 2-3 and Col. 3, lines 35-47); and a bottom panel 51 removably attached to the cover sidewalls by a zipper 60A or other fastener extending along the entire periphery of the sidewalls (see annotated Figure 3, below, and Col. 3, lines 48-56), such that the cover and the bottom panel 50 together fully encapsulate the foam layer 30’ and allow the bottom panel 51 to be independently removed to provide access to the foam layers 30 for cleaning, service, or replacement without removing the entire cover from the mattress topper 50, and wherein removal of the bottom panel exposes mattress topper while the cover remains in place (Col. 1, lines 56-67 and Col. 3, lines 35-56).
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Additionally, Wagner (U.S. Patent No. 4,388,738) is cited as being of interest for teaching wherein the cover 12 further comprises at least one dedicated opening 48 for passage of a power cord 49 (Figures 5-5a and Col. 4, lines 4-22).
None of the prior art cited above, either alone or in combination disclose, teach, or suggest wherein the opening being positioned to allow connection or disconnection of the power cord when the bottom panel is removed. The opening of Wagner is specifically designed to discourage the average consumer from removing the electrical components of the mattress such that only an authorized service representative may remove them (Col. 2, lines 24-35). While Lee does provide a method for a user to remove and replace the individual vibration units, the wires of Lee are not routed through a dedicated opening, and are instead extended inside the mattress cover 40 at the edges between the topper and used mattress, providing relatively easy access to the wires (paragraph 0043). There would be no motivation to modify the topper and cover of Lee with the opening of Wagner, as doing so would likely eliminate or at least frustrate the ability of the user to independently remove and replace each vibration unit. As such, there is no disclosure, teaching, or suggestion in the prior art of record such that a reasonable rejection of any independent claim may be reasonably maintained. Claims 2-9, 11-18, and 20 would additionally be allowable by virtue of their dependence from claims 1, 10, and 19.
Conclusion
THIS ACTION IS MADE FINAL. 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALISON N LABARGE whose telephone number is (571)272-6098. The examiner can normally be reached M-F 8-4:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Matthew Troutman can be reached at (571) 270-3654. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ALISON N LABARGE/Examiner, Art Unit 3679
/Matthew Troutman/Supervisory Patent Examiner, Art Unit 3679