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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 2/28/2023 is being considered by the examiner.
Specification
The lengthy specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
Claim Rejections - 35 USC § 112
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 15, 16, 21, 23, 25, 26, and 28-34 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 15 recites the limitation “a plurality of sleep positions” in line 7. It is not clear if this includes the sleep position mentioned in line 3 of the claim or if these are completely new sleep positions.
Claims 16, 21, 23, 25, and 26 inherit the deficiencies of claim 15 and are likewise rejected.
Claim 28 recites the limitation “a plurality of sleep positions” in line 7. It is not clear if this includes the sleep position mentioned in line 5 of the claim or if these are completely new sleep positions.
Claims 29-34 inherit the deficiencies of claim 28 and are likewise rejected.
Claims 29, 31, and 34 recite “target pressures” in line 2. It is not clear if this is a new instance or refers to the target pressures in line 4 of claim 28.
Claims 30 and 31 inherit the deficiencies of claim 29 and are likewise rejected.
Claims 42, 44, and 46 recite “target pressures” in line 2. It is not clear if this is a new instance or refers to the target pressures in line 4 of claim 41.
Claims 43 and 44 inherit the deficiencies of claim 42 and are likewise rejected.
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 and 41 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,351,335. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 15 and 41 of the present application recites an obvious genus variant of species claim 1 of US 11,531,335.
For claim 28, the analysis is as follows:
Present application, claim 28
Claim 1 – US 11,351,335
28. A bed including a sleep surface having controllable firmness, comprising:
pressure devices used in adjusting firmness of the sleep surface;
pressure sensors configured to sense indications of pressure of the sleep surface; and
a controller configured to command the pressure devices to achieve target pressures
based on a sleep position of a sleeper on the sleep surface, as indicated by a plurality of pressure profiles specifying the target pressures, the plurality of pressure profiles including pressure profiles that differ for each of a plurality of sleep positions;
with the controller further configured to, from time-to-time:
command the pressure devices to achieve a set of test pressures different than the target
pressures specified by the pressure profiles;
determine if sleep interruptions for the sleeper on the sleep surface indicates decreased
sleep interruptions using the test pressures different than the target pressures specified by the pressure profiles; and
in response to determining that the sleep interruptions for the sleeper indicates decreased sleep interruptions, replace the target pressures specified by the pressure profiles with the test pressures.
1. A bed including a sleep surface having controllable firmness, comprising:
pressure devices used in adjusting firmness of the sleep surface;
pressure sensors configured to sense indications of pressure of the sleep surface; and
a controller configured to command the pressure devices to achieve target pressures
based on a sleep position of a sleeper on the sleep surface and a sleep stage of the sleeper on the sleep surface, as indicated by a plurality of target pressure profiles specifying the target pressures, the plurality of target pressure profiles including different target pressure profiles that differ for each of a plurality of sleep positions and a plurality of sleep stages;
with the controller further configured to, from time-to-time:
command the pressure devices to achieve a set of test pressures different than the target pressures specified by the target pressure profiles;
determine if a total sleep time for the sleeper on the sleep surface indicates increased total sleep time using the test pressures different than the target pressures specified by the target pressure profiles; and,
in response to determining that the total sleep time for the sleeper indicates increased total sleep time, replace the target pressures specified by the target pressure profiles with the test pressures.
The differences between the two claims are underlined, specifically the determination of sleep interruptions vs. the determination of total sleep time. However, determination of sleep interruptions and determination of total sleep time can be considered as variables that are related and can be derived from each other. In addition, as seen in the table above, claim 1 of US 11,351,335 recites additional limitations in italics with regards to sleep stages, which makes it a more specific than the claim of the present application.
For claim 41, the analysis is as follows:
Present application, claim 41
Claim 1 – US 11,351,335
4l. A bed including a sleep surface having controllable firmness, comprising:
pressure devices used in adjusting firmness of the sleep surface;
pressure sensors configured to sense indications of pressure of the sleep surface; and
a controller configured to command the pressure devices to achieve target pressures
based on information from the pressure sensors indicating pressure on multiple zones of the sleep surface, as indicated by a plurality of pressure profiles specifying the target pressures, the plurality of pressure profiles including pressure profiles that differ based on information from the pressure sensors indicating pressure on multiple zones of the sleep surface;
with the controller further configured to, from time-to-time:
command the pressure devices to achieve a set of test pressures different than the target
pressures specified by the pressure profiles;
determine if sleep interruptions for the sleeper on the sleep surface indicates decreased sleep interruptions using the test pressures different than the target pressures specified by the pressure profiles; and
in response to determining that the sleep interruptions for the sleeper indicates decreased sleep interruptions, replace the target pressures specified by the pressure profiles with the test pressures.
1. A bed including a sleep surface having controllable firmness, comprising:
pressure devices used in adjusting firmness of the sleep surface;
pressure sensors configured to sense indications of pressure of the sleep surface; and
a controller configured to command the pressure devices to achieve target pressures
based on a sleep position of a sleeper on the sleep surface and a sleep stage of the sleeper on the sleep surface, as indicated by a plurality of target pressure profiles specifying the target pressures, the plurality of target pressure profiles including different target pressure profiles that differ for each of a plurality of sleep positions and a plurality of sleep stages;
with the controller further configured to, from time-to-time:
command the pressure devices to achieve a set of test pressures different than the target pressures specified by the target pressure profiles;
determine if a total sleep time for the sleeper on the sleep surface indicates increased total sleep time using the test pressures different than the target pressures specified by the target pressure profiles; and,
in response to determining that the total sleep time for the sleeper indicates increased total sleep time, replace the target pressures specified by the target pressure profiles with the test pressures.
The differences between the two claims are underlined, specifically the determination of sleep interruptions vs. the determination of total sleep time and the information from the pressure sensors indicating pressure on multiple zones of the sleep surface, vs. the sleep position on the sleep surface. However, determination of sleep interruptions and determination of total sleep time can be considered as variables that are related and can be derived from each other and the sleep position using the information from pressure sensors is more specific than information from the pressure sensors. In addition, as seen in the table above, claim 1 of US 11,351,335 recites additional limitations in italics with regards to sleep stages, which makes it a more specific than the claim of the present application
Allowable Subject Matter
Claims 35-40 are allowed.
Claims 15, 16, 21, 23, 25, 26, 28-34, and 41-44 and 46 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, and/or the double patenting rejections set forth in this Office action.
Claim 45 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter:
The closest prior art found was WO 2005107674 (Balaton et al., hereinafter Balaton), US 2016/0015184 (Nunn et al., hereinafter Nunn), US 2009/0240514 (Oexman et al., hereinafter Oexman), and US 2015/0351982 (Krenik).
In regards to claim 15, the prior art of record does not teach or suggest a method, as claimed by Applicant, that includes the following combination of steps:
commanding, by a controller, pressure devices to target pressures based on the sleep position of the sleeper, as indicated by a plurality of target pressure profiles specifying the target pressures, the plurality of target pressure profiles including target pressure profiles that differ for each of a plurality of sleep positions, with the pressure devices being under the sleep surface of the bed and used to adjust firmness of the sleep surface; and
from time-to-time having the controller perform the following steps:
commanding the pressure devices to test pressures instead of the target pressures specified by the target pressure profiles;
monitoring sleep interruptions of the sleeper during use of the test pressures, using biometric information from biometric sensors;
determining if the sleeper on the sleep surface has reduced sleep interruptions using the test pressures instead of the target pressures specified by the target pressure profiles; and
in response to determining that the sleeper has reduced sleep interruptions using the test pressures instead of the target pressures specified by the target pressure profiles sleep, replacing the target pressures of the at least one target pressure profile with the test pressures.
Claims 16, 21, 23, and 25-26 are dependent on allowable matter from claim 15 and would be allowable once the 112 rejections are overcome.
In regards to claim 28, the prior art of record does not teach or suggest a device, as claimed by Applicant, with a combination of components including a controller, where the controller is configured to command the pressure devices to achieve target pressures based on a sleep position of a sleeper on the sleep surface, as indicated by a plurality of pressure profiles specifying the target pressures, the plurality of pressure profiles including pressure profiles that differ for each of a plurality of sleep positions;
and from time to time do the following:
command the pressure devices to achieve a set of test pressures different than the target pressures specified by the pressure profiles;
determine if sleep interruptions for the sleeper on the sleep surface indicates decreased sleep interruptions using the test pressures different than the target pressures specified by the pressure profiles; and
in response to determining that the sleep interruptions for the sleeper indicates decreased sleep interruptions, replace the target pressures specified by the pressure profiles with the test pressures.
Claims 29-34 are dependent on allowable matter from claim 28 and would be allowable once the 112 and double patenting rejections are overcome.
In regards to claim 35, the prior art of record does not teach or suggest a method, as claimed by Applicant, where a controller performs the following combination of steps:
commanding pressure devices to target pressures based on information from pressure sensors indicating pressure on multiples zones of the sleep surface, as indicated by a plurality of target pressure profiles specifying the target pressures, the plurality of target pressure profiles including target pressure profiles that differ based on information from the pressure sensors indicating pressure on multiple zones of the sleep surface, with the pressure devices being under the sleep surface of the bed and used to adjust firmness of the sleep surface; and
from time-to-time:
commanding the pressure devices to test pressures instead of the target pressures specified by the target pressure profiles;
monitoring sleep interruptions of the sleeper during use of the test pressures, using biometric information from biometric sensors;
determining if the sleeper on the sleep surface has reduced sleep interruptions using the test pressures instead of the target pressures specified by the target pressure profiles; and
in response to determining that the sleeper has reduced sleep interruptions using the test pressures instead of the target pressures specified by the target pressure profiles, replacing the target pressures of the at least one target pressure profile with the test pressures.
Claims 36-40 are dependent on allowed matter from claim 35 and are allowed.
In regards to claim 41, the prior art of record does not teach or suggest a device, as claimed by Applicant, with a combination of components including a controller, where the controller is configured to
command the pressure devices to achieve target pressures based on information from the pressure sensors indicating pressure on multiple zones of the sleep surface, as indicated by a plurality of pressure profiles specifying the target pressures, the plurality of pressure profiles including pressure profiles that differ based on information from the pressure sensors indicating pressure on multiple zones of the sleep surface;
and from time-to-time:
command the pressure devices to achieve a set of test pressures different than the target pressures specified by the pressure profiles;
determine if sleep interruptions for the sleeper on the sleep surface indicates decreased sleep interruptions using the test pressures different than the target pressures specified by the pressure profiles; and
in response to determining that the sleep interruptions for the sleeper indicates decreased sleep interruptions, replace the target pressures specified by the pressure profiles with the test pressures.
Claims 42-46 are dependent on allowable matter from claim 41 and would be allowable once the double patenting rejections are overcome.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOSHUA DARYL DEANON LANNU whose telephone number is (571)270-1986. The examiner can normally be reached Monday-Thursday 8 AM - 5 PM, Friday 8 AM -12 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Charles Marmor can be reached at (571) 272-4730. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CHARLES A MARMOR II/Supervisory Patent Examiner
Art Unit 3791
/JOSHUA DARYL D LANNU/Examiner, Art Unit 3791