Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Claims 21-44 are pending in the application. Claims 1-20 & 45 where previously canceled. No newly added claims presented.
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.
Regarding claims 21-34, the limitation "wherein the depth is less than a distance between the patient’s shoulders and a crown of the patient’s head; and wherein the patient is an average adult" renders the claim indefinite because the limitation of the claim is defined by reference to an object and the relationship between the limitation and the object is not sufficiently defined. The distance between the patient’s shoulders and crown of the head may differ from patient to patient. For example, in the case of a 5ft man compared to a 7ft man. In such an example the elements of a claim have two or more plausible constructions such that the examiner cannot readily ascertain positional relationship of the elements, rendering the claims indefinite. See MPEP § 2173.05(b).
Regarding claims 35-40, the limitation "wherein the depth is less than a distance between the patient’s shoulders and a crown of the patient’s head; and wherein the patient is an average adult male" renders the claim indefinite because the limitation of the claim is defined by reference to an object and the relationship between the limitation and the object is not sufficiently defined. The distance between the patient’s shoulders and crown of the head may differ from patient to patient. For example, in the case of a 5ft male compared to a 7ft male. In such an example the elements of a claim have two or more plausible constructions such that the examiner cannot readily ascertain positional relationship of the elements, rendering the claims indefinite. See MPEP § 2173.05(b).
Regarding claims 41-44, the limitation "wherein the depth is less than a distance between the patient’s shoulders and a crown of the patient’s head; and wherein the patient is an average adult female" renders the claim indefinite because the limitation of the claim is defined by reference to an object and the relationship between the limitation and the object is not sufficiently defined. The distance between the patient’s shoulders and crown of the head may differ from patient to patient. For example, in the case of a 4ft female compared to a 7ft female. In such an example the elements of a claim have two or more plausible constructions such that the examiner cannot readily ascertain positional relationship of the elements, rendering the claims indefinite. See MPEP § 2173.05(b).
Regarding claims 42, the limitation " wherein a horizontal distance between the apex of the first convex surface and the apex of the second convex surface is less than a length of the patient’s neck" renders the claim indefinite because the limitation of the claim is defined by reference to an object and the relationship between the limitation and the object is not sufficiently defined. The length of a patient’s neck may vary from patient to patient. For example in the case of a 5ft man compared to a 7ft man. In such an example the elements of a claim have two or more plausible constructions such that the examiner cannot readily ascertain positional relationship of the elements, rendering the claims indefinite. See MPEP § 2173.05(b).
Regarding claims 43, the limitation "wherein the depth of the base is less than a height of the patient’s head" renders the claim indefinite because the limitation of the claim is defined by reference to an object and the relationship between the limitation and the object is not sufficiently defined. The height of a patient’s head may vary from patient to patient. For example in the case of a 5ft man compared to a 7ft man. In such an example the elements of a claim have two or more plausible constructions such that the examiner cannot readily ascertain positional relationship of the elements, rendering the claims indefinite. See MPEP § 2173.05(b).
Regarding claims 44, the limitation "wherein the device is configured so that a vertical distance between the substrate surface and a lowermost point on the portion of the patient's head suspended rearwardly of the rear terminal end is less than a vertical distance between the substrate surface and the concave surface" renders the claim indefinite because the limitation of the claim is defined by reference to an object and the relationship between the limitation and the object is not sufficiently defined. For example in the case of a 5ft man compared to a 7ft man, the elements of a claim have two or more plausible constructions such that the examiner cannot readily ascertain positional relationship of the elements, rendering the claims indefinite. See MPEP § 2173.05(b).
The term “average” in claim 21-44 is a relative term which renders the claim indefinite. The term “average” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear what an average adult would be considered (age, weight, body dimensions e.g.).
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.
Claims 21-31, 33-36 and 38-44 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over US Patent 5,279,310 hereinafter referred to as Hsien in view of US Patent 4,832,007 hereinafter referred to as Davis.
Re-Claim 21
Hsien disclose an orthotic device 10 fig.3, comprising: a body 10 having a base (fig.3 & 5) and at least one support surface disposed above the base; and front and rear terminal ends (see fig.3 & 5) that extend from the base to the at least one support surface; wherein the at least one support surface comprises a first convex surface 13 fig.3 having an apex, a second convex surface having an apex 11 fig.3, and a concave surface 12, 16 fig.3; wherein the first convex surface is disposed between the second convex surface and the front terminal end; wherein at least a portion of the second convex surface is disposed between the first convex surface and the rear terminal end; wherein the concave surface is disposed between the second convex surface and the front terminal end; wherein the apex of the first convex surface is vertically farther from the base than the apex of the second convex surface (see fig.3); wherein the device is configured so that, when the device is located between a substrate surface and a patient's neck with the patient in a supine position and at least a portion of the front terminal end of the device in contact with the patient's lower neck and/or shoulders, at least a portion of the patient's head is suspended above the substrate surface rearwardly of the rear terminal end (see fig.5); and the first convex surface supports and stretches the patient's neck; wherein the base has a depth from the front terminal end to the rear terminal end; and wherein the depth is less than a distance between the patient’s shoulders and a crown of the patient's head (see fig.1, 3 & 5 [column 1 lines 9-13]).
However does not discloses wherein the patient is an average adult.
Davis teaches a orthotic device 10 fig.1, when the device is located between a substrate surface and a patient's neck 61 fig.6 with the patient in a supine position and at least a portion of the front terminal end of the device in contact with the patient's lower neck and/or shoulders, at least a portion of the patient's head is suspended (see fig.6) and wherein the patient is an average adult (see column 8 lines 44-50 “It is preferred that traction pillows of different sizes, i.e. different relative lobes and troughs, be provided for individuals with different head and neck morphology. In general, it is also noted that adult female anatomy generally dictates smaller size traction pillow measurements than appropriate for an adult male, even though females may appear to have slightly longer necks.”).
Accordingly, it would have been obvious to one having ordinary skill in the art at the time the invention was made to dimension the pillow according to the dimensions of an average adult patient in order to provide proper support for the patient according to an average size of the patient type since it was known in the art that different size pillows are needed for different size users.
Re-Claim 22
Hsien as modified by Davis above discloses,
wherein at least the first convex surface is made from a cushioning material (inflatable).
Re-Claim 23
Hsien as modified by Davis above discloses,
wherein the base is an elongate planar surface (see fig.3 & 5).
Re-Claim 24
Hsien as modified by Davis above discloses,
wherein the orthotic device comprises at least one side face that tangentially meets with the at least one support surface (see fig. 3 & 5).
Re-Claim 25
Hsien as modified by Davis above discloses,
wherein the device is configured so that a surface area of the first convex surface in contact with the patient's neck is less than a surface area of the base in contact with the substrate surface (see fig.5).
Re-Claim 26
Hsien as modified by Davis above discloses,
wherein the concave surface is configured to support at least one of the patient's lower neck and a portion of the shoulders to restrict cervical over- extension (see fig.5).
Re-Claim 27
Hsien as modified by Davis above discloses,
wherein the concave surface is curved and wherein the first convex surface tangentially meets the concave surface.
Re-Claim 28
Hsien as modified by Davis above discloses,
wherein the concave surface is disposed between the first convex surface and the second convex surface (see fig.3).
Re-Claim 29
Hsien as modified by Davis above discloses,
a second concave surface 16 fig.3 disposed between the first convex surface and the front terminal end.
Re-Claim 30
Hsien as modified by Davis above discloses,
wherein the second convex surface is at least partially curved and the rear terminal end tangentially meets with the second convex surface (see fig.3).
Re-Claim 31
Hsien as modified by Davis above discloses,
wherein the second convex surface is curved and tangentially meets the concave surface (see fig.3).
Re-Claim 33
Hsien as modified by Davis above discloses,
wherein the first convex surface 13 is at least partially curved, and wherein the second convex surface 11 is at least partially curved and has a degree of curvature greater than a degree of curvature of the first convex surface (see fig.3).
Re-Claim 34
Hsien as modified by Davis above discloses,
wherein the concave surface 12 and the first and second convex surfaces 11, 13 are at least partially curved, and wherein a degree of curvature of the concave surface is greater than a degree of curvature of at least one of the first and second convex surfaces (see fig.3).
Re-Claim 35
Hsien as modified by Davis above discloses,
Hsien disclose an orthotic device 10 fig.3, comprising: a body 10 having a base (fig.3 & 5), front and rear terminal ends (see fig.3 & 5), and at least one support surface disposed above the base; wherein the at least one support surface comprises a first convex surface 13 fig.3 having an apex and a second convex surface having an apex 11 fig.3; wherein the first convex surface is disposed between the second convex surface and the front terminal end; wherein at least a portion of the second convex surface is disposed between the first convex surface and the rear terminal end; wherein the apex of the first convex surface is vertically farther from the base than the apex of the second convex surface (see fig.3); wherein the device is configured to suspend at least a portion of a supine patient’s head rearwardly of the device, and the first convex surface is configured to support and stretch the patient’s neck, when the device is disposed between the patient’s neck and a substrate surface with the base in contact with the substrate surface (see fig.5), at least a portion of the first convex surface in contact with the patient’s neck and at least a portion of the front terminal end in contact with the patient’s shoulders (see fig.5); wherein the base has a depth from the front terminal end to the rear terminal end; and wherein the depth is less than a distance between the patient’s shoulders and a crown of the patient's head (see fig.1, 3 & 5 [column 1 lines 9-13]).
However does not discloses wherein the patient is an average adult male.
Davis teaches a orthotic device 10 fig.1, when the device is located between a substrate surface and a patient's neck 61 fig.6 with the patient in a supine position and at least a portion of the front terminal end of the device in contact with the patient's lower neck and/or shoulders, at least a portion of the patient's head is suspended (see fig.6) and wherein the patient is an average adult male (see column 8 lines 44-50 ).
Accordingly, it would have been obvious to one having ordinary skill in the art at the time the invention was made to dimension the pillow according to the dimensions of an average male adult patient in order to provide proper support for the patient according to an average size of the patient type since it was known in the art that different size pillows are needed for different size users.
Re-Claim 36
Hsien as modified by Davis above discloses,
wherein at least one of the first and second convex surfaces is curved (see fig.3).
Re-Claim 38
Hsien as modified by Davis above discloses,
wherein the base is wider than it is deep (see fig.3).
Re-Claim 39
Hsien as modified by Davis above discloses,
wherein the second convex surface comprises at least a portion of the rear terminal end (see fig.3).
Re-Claim 40
Hsien as modified by Davis above discloses,
wherein the second convex surface is at least partially curved (see fig.3).
Re-Claim 41
Hsien as modified by Davis above discloses,
Hsien disclose an orthotic device 10 fig.3, comprising: a body 10 having a base (fig.3 & 5) and at least one support surface disposed above the base; and front and rear terminal ends (see fig.3 & 5) that extend from the base to the at least one support surface; wherein the at least one support surface comprises a first convex surface 13 fig.3 having an apex, a second convex surface having an apex 11 fig.3, and a concave surface 12, 16 fig.3; wherein the first convex surface is disposed between the second convex surface and the front terminal end; wherein at least a portion of the second convex surface is disposed between the first convex surface and the rear terminal end; wherein the concave surface is disposed between the second convex surface and the front terminal end; wherein the apex of the first convex surface is vertically farther from the base than the apex of the second convex surface (see fig.3); wherein the device is configured so that, when the device is located between a substrate surface and a patient's neck with the patient in a supine position and the front terminal end of the device disposed beneath the patient's lower neck and/or shoulders (see fig.5), at least a portion of the patient's head is suspended above the substrate surface rearwardly of the rear terminal end of the device; and the first convex surface supports and stretches the patient's neck (see fig.5); wherein the base has a depth from the front terminal end to the rear terminal end; and wherein the depth is less than a distance between the patient’s shoulders and a crown of the patient's head (see fig.1, 3 & 5 [column 1 lines 9-13]).
However does not discloses wherein the patient is an average adult female.
Davis teaches a orthotic device 10 fig.1, when the device is located between a substrate surface and a patient's neck 61 fig.6 with the patient in a supine position and at least a portion of the front terminal end of the device in contact with the patient's lower neck and/or shoulders, at least a portion of the patient's head is suspended (see fig.6) and wherein the patient is an average adult female (see column 8 lines 44-50 ).
Accordingly, it would have been obvious to one having ordinary skill in the art at the time the invention was made to dimension the pillow according to the dimensions of an average female adult patient in order to provide proper support for the patient according to an average size of the patient type since it was known in the art that different size pillows are needed for different size users.
Re-Claim 42
Hsien as modified by Davis above discloses,
wherein a horizontal distance between the apex of the first convex surface and the apex of the second convex surface is less than a length of the patient’s neck (see fig.3 & 5).
Re-Claim 43
Hsien as modified by Davis above discloses,
wherein the depth of the base is less than a height of the patient’s head (see fig.3 & 5).
Re-Claim 44
Hsien as modified by Davis above discloses,
wherein the device is configured so that a vertical distance between the substrate surface and a lowermost point on the portion of the patient's head suspended rearwardly of the rear terminal end is less than a vertical distance between the substrate surface and the concave surface (see fig.3).
Claims 21-31 and 34-45 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over US Patent 4,679,263 hereinafter referred to as Honer in view of Davis.
Re-Claim 21
Honer disclose,21 an orthotic device 10 fig.1, comprising: a body 10 having a base (fig.1 & 2) and at least one support surface disposed above the base; and front and rear terminal ends (see fig.1 & 2) that extend from the base to the at least one support surface; wherein the at least one support surface comprises a first convex surface 16 fig.1 having an apex, a second convex surface 15 fig.1 having an apex, and a concave surface 18 and between 15 & 16 fig.1; wherein the first convex surface is disposed between the second convex surface and the front terminal end; wherein at least a portion of the second convex surface is disposed between the first convex surface and the rear terminal end; wherein the concave surface is disposed between the second convex surface and the front terminal end; wherein the apex of the first convex surface is vertically farther from the base than the apex of the second convex surface (see fig.1 & 2); wherein the device is configured so that, when the device is located between a substrate surface and a patient's neck with the patient in a supine position and at least a portion of the front terminal end of the device in contact with the patient's lower neck and/or shoulders, at least a portion of the patient's head is suspended above the substrate surface rearwardly of the rear terminal end (see fig.1 & 2); and the first convex surface supports and stretches the patient's neck; wherein the base has a depth from the front terminal end to the rear terminal end; and wherein the depth is less than a distance between the patient’s shoulders and a crown of the patient's head.
However does not discloses wherein the patient is an average adult.
Davis teaches a orthotic device 10 fig.1, when the device is located between a substrate surface and a patient's neck 61 fig.6 with the patient in a supine position and at least a portion of the front terminal end of the device in contact with the patient's lower neck and/or shoulders, at least a portion of the patient's head is suspended (see fig.6) and wherein the patient is an average adult (see column 8 lines 44-50 ).
Accordingly, it would have been obvious to one having ordinary skill in the art at the time the invention was made to dimension the pillow according to the dimensions of an average adult patient in order to provide proper support for the patient according to an average size of the patient type since it was known in the art that different size pillows are needed for different size users.
Re-Claim 22
Honer as modified by Davis above discloses,
wherein at least the first convex surface is made from a cushioning material (inflatable).
Re-Claim 23
Honer as modified by Davis above discloses,
wherein the base is an elongate planar surface (see fig.1 & 2).
Re-Claim 24
Honer as modified by Davis above discloses,
wherein the orthotic device comprises at least one side face that tangentially meets with the at least one support surface (see fig.1 & 2).
Re-Claim 25
Honer as modified by Davis above discloses,
wherein the device is configured so that a surface area of the first convex surface in contact with the patient's neck is less than a surface area of the base in contact with the substrate surface (see fig.1 & 2).
Re-Claim 26
Honer as modified by Davis above discloses,
wherein the concave surface is configured to support at least one of the patient's lower neck and a portion of the shoulders to restrict cervical over- extension (see fig.1 & 2).
Re-Claim 27
Honer as modified by Davis above discloses,
wherein the concave surface is curved and wherein the first convex surface tangentially meets the concave surface.
Re-Claim 28
Honer as modified by Davis above discloses,
wherein the concave surface is disposed between the first convex surface and the second convex surface (see fig.1 & 2).
Re-Claim 29
Honer as modified by Davis above discloses,
a second concave surface 16 fig.3 disposed between the first convex surface and the front terminal end.
Re-Claim 30
Honer as modified by Davis above discloses,
wherein the second convex surface is at least partially curved and the rear terminal end tangentially meets with the second convex surface (see fig.1 & 2).
Re-Claim 31
Honer as modified by Davis above discloses,
wherein the second convex surface is curved and tangentially meets the concave surface (see fig.1 & 2).
Re-Claim 34
Honer as modified by Davis above discloses,
wherein the concave surface and the first and second convex surfaces are at least partially curved, and wherein a degree of curvature of the concave surface is greater than a degree of curvature of at least one of the first and second convex surfaces (see fig.1).
Re-Claim 35
Honer as modified by Davis above discloses,
Hsien disclose an orthotic device 10 fig.1, comprising: a body 10 having a base (fig.1 & 2), front and rear terminal ends (see fig.1 & 2), and at least one support surface disposed above the base; wherein the at least one support surface comprises a first convex surface 16 fig.1 having an apex and a second convex surface 15 fig.1 having an apex; wherein the first convex surface is disposed between the second convex surface and the front terminal end; wherein at least a portion of the second convex surface is disposed between the first convex surface and the rear terminal end; wherein the apex of the first convex surface is vertically farther from the base than the apex of the second convex surface (see fig.1 & 2); wherein the device is configured to suspend at least a portion of a supine patient’s head rearwardly of the device, and the first convex surface is configured to support and stretch the patient’s neck, when the device is disposed between the patient’s neck and a substrate surface with the base in contact with the substrate surface (see fig.1 & 2), at least a portion of the first convex surface in contact with the patient’s neck and at least a portion of the front terminal end in contact with the patient’s shoulders (see fig.1 & 2); wherein the base has a depth from the front terminal end to the rear terminal end; and wherein the depth is less than a distance between the patient’s shoulders and a crown of the patient's head.
However does not discloses wherein the patient is an average adult male.
Davis teaches a orthotic device 10 fig.1, when the device is located between a substrate surface and a patient's neck 61 fig.6 with the patient in a supine position and at least a portion of the front terminal end of the device in contact with the patient's lower neck and/or shoulders, at least a portion of the patient's head is suspended (see fig.6) and wherein the patient is an average adult male (see column 8 lines 44-50 ).
Accordingly, it would have been obvious to one having ordinary skill in the art at the time the invention was made to dimension the pillow according to the dimensions of an average male adult patient in order to provide proper support for the patient according to an average size of the patient type since it was known in the art that different size pillows are needed for different size users.
Re-Claim 36
Honer as modified by Davis above discloses,
wherein at least one of the first and second convex surfaces is curved (see fig.1 & 2).
Re-Claim 37
Honer as modified by Davis above discloses,
wherein the device is configured so that no portion of the device extends rearwardly of the patient’s head when the device is disposed between the patient’s neck and a substrate surface so that the base is in contact with the substrate surface, at least a portion of the first convex surface is in contact with the patient’s neck and at least a portion of the front terminal end is in contact with the patient’s shoulders (see fig.2).
Re-Claim 38
Honer as modified by Davis above discloses,
wherein the base is wider than it is deep (see fig.1 & 2).
Re-Claim 39
Honer as modified by Davis above discloses,
wherein the second convex surface comprises at least a portion of the rear terminal end (see fig.1 & 2).
Re-Claim 40
Honer as modified by Davis above discloses,
wherein the second convex surface is at least partially curved (see fig.1 & 2).
Re-Claim 41
Honer as modified by Davis above discloses,
Hsien disclose an orthotic device 10 fig.1, comprising: a body 10 having a base (fig.1 & 2) and at least one support surface disposed above the base; and front and rear terminal ends (see fig.1 & 2) that extend from the base to the at least one support surface; wherein the at least one support surface comprises a first convex surface 16 fig.1 having an apex, a second convex surface 15 fig.1 having an apex, and a concave surface 18 and between 15 & 16 fig.1; wherein the first convex surface is disposed between the second convex surface and the front terminal end; wherein at least a portion of the second convex surface is disposed between the first convex surface and the rear terminal end; wherein the concave surface is disposed between the second convex surface and the front terminal end; wherein the apex of the first convex surface is vertically farther from the base than the apex of the second convex surface (see fig.1 & 2); wherein the device is configured so that, when the device is located between a substrate surface and a patient's neck with the patient in a supine position and the front terminal end of the device disposed beneath the patient's lower neck and/or shoulders (see fig.1 & 2), at least a portion of the patient's head is suspended above the substrate surface rearwardly of the rear terminal end of the device; and the first convex surface supports and stretches the patient's neck (see fig.1 & 2); wherein the base has a depth from the front terminal end to the rear terminal end; and wherein the depth is less than a distance between the patient’s shoulders and a crown of the patient's head.
However does not discloses wherein the patient is an average adult female.
Davis teaches a orthotic device 10 fig.1, when the device is located between a substrate surface and a patient's neck 61 fig.6 with the patient in a supine position and at least a portion of the front terminal end of the device in contact with the patient's lower neck and/or shoulders, at least a portion of the patient's head is suspended (see fig.6) and wherein the patient is an average adult female (see column 8 lines 44-50 ).
Accordingly, it would have been obvious to one having ordinary skill in the art at the time the invention was made to dimension the pillow according to the dimensions of an average female adult patient in order to provide proper support for the patient according to an average size of the patient type since it was known in the art that different size pillows are needed for different size users.
Re-Claim 42
Honer as modified by Davis above discloses,
wherein a horizontal distance between the apex of the first convex surface and the apex of the second convex surface is less than a length of the patient’s neck (see fig.1 & 2).
Re-Claim 43
Honer as modified by Davis above discloses,
wherein the depth of the base is less than a height of the patient’s head (see fig.1 & 2).
Re-Claim 44
Honer as modified by Davis above discloses,
wherein the device is configured so that a vertical distance between the substrate surface and a lowermost point on the portion of the patient's head suspended rearwardly of the rear terminal end is less than a vertical distance between the substrate surface and the concave surface (see fig.1 & 2).
Claim 32 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Hsien in view of Davis and further in view of US Patent 5,127,120 hereinafter referred to as Mason.
Hsien discloses the claimed apparatus however does not disclose wherein the apex of the second convex surface tangentially meets the concave surface.
Mason teaches an orthotic device 10, 50 fig. 1 & 4 comprising: a body 10, 50 fig. 1 & 4 having a first convex surface 12 fig.1 &2) and second convex surface (see fig.1 opposing end from 16 & fig.4 upper left end), wherein an apex of the second convex surface tangentially meets the concave surface (see fig. 1 & 4).
Accordingly, it would have been obvious to one of ordinary skill in the art before the invention was effectively filed to have combined the spinal corrective pillow of Hsien and the head pillow of Mason and with a reasonable expectation of success arriving at an improved spinal corrective pillow wherein an apex of the second convex surface tangentially meets the second concave surface. One of ordinary skill in the art would have been motivated to make such a combination because the structural arrangement of the pillow provides improved support and spine stability for a user’s head in the reclined position as taught by Mason [column 1 lines 32-43).
Claim 32 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Honer in view of Davis and further in view of Mason.
Honer discloses the claimed apparatus however does not disclose wherein the apex of the second convex surface tangentially meets the concave surface.
Mason teaches an orthotic device 10, 50 fig. 1 & 4 comprising: a body 10, 50 fig. 1 & 4 having a first convex surface 12 fig.1 &2 ) and second convex surface (see fig.1 opposing end from 16 & fig.4 upper left end), wherein an apex of the second convex surface tangentially meets the concave surface (see fig. 1 & 4).
Accordingly, it would have been obvious to one of ordinary skill in the art before the invention was effectively filed to have combined the spinal positioning pillow of Honer and the head pillow of Mason and with a reasonable expectation of success arriving at an improved spinal corrective pillow wherein an apex of the second convex surface tangentially meets the second concave surface. One of ordinary skill in the art would have been motivated to make such a combination because the structural arrangement of the pillow provides improved support and spine stability for a user’s head in the reclined position as taught by Mason [column 1 lines 32-43).
Response to Arguments
Applicant’s arguments with respect to claim(s) 21-44 have been considered but are moot because the new ground of rejection does not rely on any reference as previously applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Applicant argues on page 8 of response that the dimensions of an average adult would be known by one of ordinary skill in the art. Examiner respectfully disagrees, at the least as exemplified in Applicant’s CDC example the average height of a male patient as compared to a female patient differs significantly. Additionally this does not actually account for the claim relative dimensions of “the depth of the base as compared to “a distance between the patients shoulders and crown of a patients head”. Even if the height of the patient is specified as 66.2 inches for example, such an disclosure still would not clearly define what Applicant is referring to as “a distance between the patients shoulders and crown of a patients head… wherein the patient is an average adult”. Differences in the body portions of 66.2 inch adult would still render these relative dimensions indefinite.
Applicant argues that the prior art of Hsien does not disclose “the patient’s head is suspended above the substrate surface rearwardly of the rear terminal end” or “wherein the depth is less than a distance between the patient’s shoulders and crown of the patient’s head”. Regarding the first limitation it appears applicant is utilizing definition of “suspended” that is unfamiliar to Examiner. The Merriam Webster dictionary defines “suspended” as to hang so as to be free on all sides except at the point of support or to keep from falling or sinking by some invisible support. Based on this definition the device of Hsien does in fact suspend the patient’s head above the substrate surface rearwardly of the terminal end. Regarding the second limitation it appears Applicant’s understanding of what is considered/can be considered the shoulder differs from applicant’s. It appears applicant is limiting the definition of shoulder to the clavicle and upper part of the trapezius muscle. However it is well known the shoulder includes the scapula and the whole of the trapezius muscle which extends down the back of a person. Based on the end of the trapezius muscle and the crown of the head, the device of Hsien would have a depth less than a distance between the patient’s shoulders and crown of the patient’s head.
Applicant argues that the prior art of Honer does not disclose “the patient’s head is suspended above the substrate surface rearwardly of the rear terminal end” or “wherein the depth is less than a distance between the patient’s shoulders and crown of the patient’s head”. Regarding the first limitation it appears applicant is utilizing definition of “suspended” that is unfamiliar to Examiner. The Merriam Webster dictionary defines “suspended” as to hang so as to be free on all sides except at the point of support or to keep from falling or sinking by some invisible support. Based on this definition the device of Honer does in fact suspend the patient’s head above the substrate surface rearwardly of the terminal end. Regarding the second limitation it appears Applicant’s understanding of what is considered/can be considered the shoulder differs from applicant’s. It appears applicant is limiting the definition of shoulder to the clavicle and upper part of the trapezius muscle. However it is well known the shoulder includes the scapula and the whole of the trapezius muscle which extends down the back of a person. Based on the end of the trapezius muscle and the crown of the head, the device of Honer would have a depth less than a distance between the patient’s shoulders and crown of the patient’s head.
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 IFEOLU A ADEBOYEJO whose telephone number is (571)270-3072. The examiner can normally be reached M-Th 10AM-5PM EST.
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/IFEOLU A ADEBOYEJO/Examiner, Art Unit 3673
/Matthew Troutman/Supervisory Patent Examiner, Art Unit 3679
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