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
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.
Claims 1-6, 8-16 are rejected under 35 U.S.C. 103 as being unpatentable over LU 100834 Kirchhoff in view of US 2005/0288749 Lachenbruch.
Regarding claim 1, Kirchhoff teaches a foam padding having edges, and at least one upper section and at least one lower section located below the upper section (paragraph 0002), the foam padding comprising:
at least one absorber embedded in the upper section (the upper half of one band, figure 1), the at least one absorber for absorbing thermal energy from the upper section (paragraph 0008); and
at least one band embedded in the lower section (the lower half a different band, figure 1), the at least one band configured for transferring thermal energy within the lower section from a sub-section with excess thermal energy to at least one sub-section without excess thermal energy (paragraph 0008),
wherein the at least one sub-section without excess thermal energy is located at the edges of the foam padding (paragraph 0038),
wherein the at least one absorber and the at least one band are separate parts (different bands, figure 1), and
wherein part of the foam padding is provided between the upper section and the lower section (figure 1),
wherein the absorber has a higher thermal capacity than the band (paragraphs 0020 and 0028, where graphite has a higher thermal capacity than PE, and the graphite portion of the absorber has a higher thermal capacity than the PE portion of the band).
Kirchoff does not explicitly teach the thickness of the upper and lower sections. However, “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device, and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” (MPEP 2144.04 Section IV Part A). Therefore, without a showing of criticality, the claimed upper and lower section thicknesses do not impart patentability to the claims.
Kirchoff does not teach that the absorber and the band are solely in the upper and lower sections, respectively. Lachenbruch teaches a heat wick for cooling in a mattress, where the thermally conductive materials 3 are embedded (due to being beneath the ticking) exclusively in the upper or lower sections of the mattress along the sides (figure 1), and
wherein part of the foam padding is provided between the upper section and the lower section thereby separating the at least one absorber from the at least one band (figure 1, where there is mattress material in the central portion and horizontal absorbers and bands above and below the central portion, respectively.
The only difference between the claim and the prior art is the combination of the elements in a single reference. One of ordinary skill in the art before the effective filing date of the invention could have combined the elements using known methods and there is no evidence that the conductive bands exclusively in the upper or lower sections performs differently when combined with the other elements of the claim than it does separably nor is there any evidence that the combination would produce any unexpected results (MPEP 2141, Part III. KSR A: Combining Prior Art Elements According to Known Methods To Yield Predictable Results).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to alter the orientation of the bands in Kirchoff to be solely in the upper or lower sections as the bands in Lachenbruch.
Regarding claim 2, Kirchhoff teaches that the upper section is located between the lower section and a surface of the foam padding (figure 1, where the claim does not require a particular distinction between the upper and lower sections).
Regarding claim 3, Kirchhoff teaches that the lower section has an inhomogeneous temperature distribution (paragraph 0038).
Regarding claim 4, Kirchhoff teaches that the absorber comprises at least one conducting layer (paragraph 0020).
Regarding claim 5, Kirchhoff teaches that the absorber comprises a plurality of conducting strips (sheets of graphite, paragraph 0020) connected together by a conducting connecting band (PE layer, paragraph 0028),
wherein the connecting band is more flexible than the plurality of conducting strips (paragraphs 0020 and 0028, where PE is more flexible than graphite).
Regarding claim 6, Kirchhoff teaches that the band comprises a continuous conducting layer (paragraph 0021) extending from within the at least one sub-section with excess thermal energy to the at least one sub-section without excess thermal energy (paragraph 0022).
Regarding claim 8, Kirchhoff teaches that the conducting layer has a thickness of 0.5 mm (paragraph 0020).
Regarding claim 9, Kirchhoff teaches that the conducting layer is made of graphite (paragraph 0020).
Regarding claim 10, Kirchhoff teaches that the absorber is laminated on at least one side with polyethylene or polyurethane (paragraph 0028).
Regarding claim 11, Kirchhoff teaches that the band is punctured or perforated (paragraph 0027).
Regarding claim 12, Kirchhoff teaches that the lower section has a temperature distribution that is inhomogeneous in a direction parallel to the surface of the padding (right and left, paragraph 0022).
Regarding claim 13, Kirchhoff teaches that the lower section has a temperature distribution that is inhomogeneous in a direction perpendicular to the surface of the padding (bottom surface in contact with box spring, paragraph 0022).
Regarding claim 14, Kirchhoff teaches that the foam padding is in the form of a mattress (paragraph 0002).
Regarding claim 15, Kirchhoff teaches that the upper section has a substantially homogenous temperature distribution (within each air cell, paragraph 0017), and the lower section has an inhomogeneous temperature distribution (cooler on bottom or sides, paragraph 0022).
Regarding claim 16, Kirchhoff teaches that the conducting layer has a thickness of less than or more than 0.5 mm (paragraph 0020, where higher than the range has been envisioned), and a width of less than or more than 4-10 mm (paragraph 0034, where the width of the conducting layer is the same as the width of the band).
“In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists,” (MPEP 2144.05 Section I). Therefore, absent evidence of criticality, the taught ranges of less than or more than 0.5 mm and less than or more than 4-10 mm reads on the claimed ranges of 0.5 to 2.00 mm and 30 to 70 mm.
Response to Arguments
Applicant's arguments filed August 6, 2026, have been fully considered but they are not persuasive.
Applicant argues that Kirchhoff explicitly teaches away from absorption. However, it is unclear how the bands in Kirchhoff can transport thermal energy without first absorbing it. The independent but identical upper and lower bands of Kirchhoff still read on the claim. Please note that the claim as written allows the absorber and band to have the same dual-material composition.
Applicant argues that Kirchhoff does not teach upper and lower sections. However, as discussed above, these dimensions do not impart patentability to the claim. Applicant may show how the claimed thicknesses are critical. Furthermore, the only separation between the upper and lower regions is the claimed foam padding, a feature that is present throughout the product.
Applicant argues that Lachenbruch’s product does not teach embedding. However, this feature is taught by Kirchhoff.
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 Megha M Gaitonde whose telephone number is (571)270-3598. The examiner can normally be reached Monday-Friday 8:30 am to 5 pm.
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/MEGHA M GAITONDE/Primary Examiner, Art Unit 1781
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