DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 7 October 2025 has been entered.
Election/Restrictions
Newly submitted claims 48-54 are directed to an invention that is independent or distinct from the invention originally claimed for the following reasons: they are directed toward a subcombination restrictable from the originally claimed combination.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claims 48-54 are withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
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 pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim 28-34 and 44-47 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Baker et al. (US Patent Application Publication Number 2010/0127550) in view of Brodeur (US Patent Number 7628455) and Borders (US Patent Number 6446287).
Regarding claim 28, Baker discloses a support apparatus movable between a chair configuration and a bed configuration (see Figure 3), the support apparatus comprising: an articulating seat assembly including a seat section (30), and a back section (20) rotatable relative to the seat section and configured to support a subject's back while the subject sits on the seat section; a pair of padded side sections (50) configured to be removably coupled at opposite sides of the articulating seat assembly such that each of the padded side sections is positioned forward of the back section (at least in part) and upper surfaces of the padded side sections are generally flush with or below a support surface of the articulating seat assembly when the support apparatus is in the bed configuration (see again Figure 3, which shows upper surfaces of the side sections generally flush with a support surface of the seat in the bed configuration); a first leg assembly rotatable relative to the articulating seat assembly positionable in a raised position and a lowered position (this would be the case based on the rotatable connection); and a second leg assembly rotatable relative to the articulating seat assembly (while a single leg assembly 40 is shown, paragraph 35 describes two sections of leg rest and paragraph 36 describes them as hingedly, or rotatably, attached). Baker does not disclose laterally recessed side regions or laterally rotatable leg assemblies, and may not explicitly describe using the side sections flush with a support surface. Further, Baker discloses hydraulic members coupled at least indirectly to the leg assemblies and release levers positionable under the seat section (see at least paragraph 34 describing hydraulic actuation and various release levers including 106, 122, etc.) but may not disclose the particular association of hydraulic member, release lever, and leg assembly as claimed. Regarding the side regions, Brodeur discloses a related device including a pair of laterally recessed regions on opposite sides of an articulating seat assembly (see at least Figures 1, 2, and 5 for instance) as well as padded side sections (12, which are described as padded in the last full paragraph of column 4 for instance) positioned forward of a back section that extend laterally inward of an adjacent portion of the articulating seat assembly and extends across and fills corresponding laterally recessed regions and substantially all of upper surfaces of the padded side sections are generally flush with or below a support surface of the seat (see again figures showing sections 12 extending laterally inward into recesses of 11 to form a flush surface). Accordingly, it would have been obvious to one of ordinary skill in the art before the invention was made to provide recessed side regions and associated side sections as taught by Brodeur in Baker’s device because this could improve user comfort or convenience. Regarding the leg assembly rotation, Borders discloses a related device including a leg assembly (80) rotatable laterally outward relative to an articulating seat assembly and past a seat section, the leg assembly movable between raised and lowered positions independent of a lateral position of the leg assembly relative to the seat section (see figures). Accordingly, it would have been obvious to one of ordinary skill in the art before the invention was made to provide leg assemblies rotatable as taught by Borders in Baker’s device because this could improve user comfort and support. Regarding the hydraulic member and release lever, duplication and rearrangement of components require only routine skill in the art and it accordingly would have been obvious to one of ordinary skill in the art before the invention was made to provide a hydraulic member and release lever associated with the leg assemblies as claimed based on normal variation to improve function and operation so as to improve comfort and convenience for various users. [Note further that such elements are old and well-known in the art and regularly used to control rotatable leg rests. See at least US 6336235 to Ruehl).]
Regarding claims 29-31, Baker, modified as described, further discloses at least one of the pair of padded side sections is slidably coupled and/or manually lockable to the articulating seat assembly (as in either of the reference devices), and wherein at least one of the pair of padded side sections is positioned rearwardly of the first and second leg assemblies when the support apparatus is in the chair configuration (based on the arrangement of the reference devices).
Regarding claim 32, Baker, modified as described, further discloses the articulating seat assembly includes mounting rails configured to couple to mounting assemblies of the padded side sections (much as at 84, 86 of Baker or 26, 27 of Brodeur).
Regarding claim 33, Baker, modified as described, further discloses the pair of padded side sections are positioned to support arms of the subject when the subject lays on the support apparatus in the bed configuration (it would be capable of such support).
Regarding claim 34, Baker, modified as described, further discloses a shaft coupled to one of the pair of padded side sections, wherein the shaft is configured to be positioned under the seat section when the one of the pair of padded side sections is coupled to the articulating seat assembly (much as at 86, 92 of Baker or 26, 27 of Brodeur).
Regarding claim 44, Baker, modified as described, further discloses each of the laterally recessed regions is an indentation on a respective side of the seat (much as in Brodeur).
Regarding claims 45 and 46, Baker, modified as described, discloses an apparatus as explained above but may not clearly disclose the back section shapes as claimed. Changes in size and shape of components require only routine skill in the art and Brodeur further discloses a back section having a cobra hood shape and including a first leg opening extending inwardly past at least a first portion of a first upper shoulder of the back section, and a second leg opening extending inwardly past at least a second portion of a second upper shoulder of the back section, wherein the back section includes an upper edge extending along and between the first portion of the first upper shoulder and the second portion of the second upper shoulder, wherein a distance between the first and second leg openings is less than a length of the upper edge (see at least Figure 1). Accordingly, it would have been obvious to one of ordinary skill in the art before the invention was made to provide back section shapes as taught by Brodeur in Baker’s device because this could improve user comfort or convenience.
Regarding claim 47, Baker, modified as described, further discloses a headrest (22) couplable to the back section, wherein the headrest and the back section have substantially matching tapers as viewed from a front of the support apparatus when the headrest is coupled to the back section (see Figure 1).
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 28-34 and 44-47 are rejected on the ground of nonstatutory double patenting as being unpatentable over:
Claims 1-22 of U.S. Patent No. 8651569;
Claims 1-23 of U.S. Patent No. 9375088;
Claims 1-24 of U.S. Patent No. 10264885;
Claims 1-28 of U.S. Patent No. 10638843; and
Claims 1-40 of U.S. Patent No. 11246418.
Although the claims at issue are not identical, they are not patentably distinct from each other because it would have been obvious to one of ordinary skill in the art to provide the components arranged as claimed.
Response to Arguments
Applicant’s arguments with respect to claim(s) have been considered but are moot in view of the new grounds of rejection necessitated by Applicant’s amendment.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PHILIP F GABLER whose telephone number is (571)272-2155. The examiner can normally be reached Mon-Fri 8:00 - 4:30.
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/PHILIP F GABLER/ Primary Examiner, Art Unit 3636