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 .
Status of the Claims
The amendments, filed May 7, 2026, have been entered. Claims 1, 9-11, 15, 26, 33, 39, 41, 45, 62, and 70 have been amended. Claims 46-61 have previously been cancelled. Claims 1-45 and 62-70 are currently pending in the application. Claims 62-70 remain withdrawn from consideration.
The amendments to the claims have overcome the previous rejections under 35 U.S.C. 112(a) and 112(b) presented in the previous Office Action. However a new rejection to claim 1 and its dependent claims 2-34 under 35 U.S.C. 112(b) has been entered, as discussed in the rejection below.
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 1-34 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 1 contains the limitation “wherein, in response to a compressive load, individual layers collapse in a lateral direction relative to the compressive load”. A single claim which contains both an apparatus and the method steps of using the apparatus is considered indefinite because it is not clear whether infringement would occur when one creates an apparatus capable of performing the claimed method steps or when one actually performs the claimed method steps. See MPEP 2173.05(p)(II) and In re Katz Interactive Call Processing Patent Litigation, 639 F.3d 1303, 1318, 97 USPQ2d 1737, 1748-49 (Fed. Cir. 2011). Examiner recommends the language “individual layers are configured to collapse”. Claims 2-34 are additionally rejected by virtue of their dependence on claim 1.
Allowable Subject Matter
Claims 1-34 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, set forth in this Office action. The following is a statement of reasons for the indication of allowable subject matter:
Regarding claim 1, Farnham (U.S. Publication No. 2014/0208521) discloses a cushioning article comprising: a first foam cushion 300 (Figure 3A)comprising: a first foam cushion component 11 having a first base (defined by the portion of component 11 which extends from the top of the cushion to the recessions 14 and bases of the protrusions 16, Figure 3A) and first layers 16 that emanate from the first base (Figure 3A and paragraph 0041); a second foam cushion 22 component having a second base (defined by the portion of component 22 which extends from the bottom of the cushion to the recessions 24 and bases of the protrusions 23, Figure 3A) and second layers 23 that emanate from the second base (Figure 3A and paragraph 0041); wherein the first layers 16 are alternated with and positioned between the second layers 23 along a length of the cushioning article 300 (Figure 3A); wherein each layer of the first and second foam cushion components has a height (defined by the total heights of each of the cushion components 11 and 22, which are 2.0-5.0” and 2.0”-6.0” respectively) and a thickness (defined by the thickness of the each of the first and second bases, which are 0.75-3.5” and 1.0-3.0”, respectively), and wherein a ratio of the height to the thickness is at least 2.5 the ratio being selected to enable collapsing of individual layers in response to a compressive load (where said ratio for the first and second cushion components would have a maximum of 6.67 and 6.0, respectively, determined by the ratio of the largest height to the smallest thickness).
Farnham does not disclose wherein, in response to a compressive load, individual layers collapse in a lateral direction relative to the compressive load, thereby causing adjacent layers to separate and define spaces therebetween.
However, there would be no motivation to modify Farnham such that the adjacent layers are configured to separate and define spaces therebetween. Farnham discloses the application of adhesive to the tops of second layers 23. This arrangement of adhesive allows for the protrusions 16 to sink into and eventually come in contact with the surfaces of the recesses 25, which provides a progressive support profile to the mattress (paragraph 0036). Modifying this arrangement such that protrusions provide spaces between each other when compressed, instead of sinking into and contacting the recesses, would likely diminish the effect of or rid the mattress entirely of this progressive support, rendering Farnham unsuitable for its intended purpose. As such, there is no disclosure, teaching, or suggestion in the prior art such that a rejection of claim 1 may be reasonably maintained.
Claims 35-45 are allowed. The following is an examiner’s statement of reasons for allowance:
Regarding claim 35, Farnham discloses a cushioning article comprising: a first foam cushion 300 comprising opposing first and second foam cushion components 11 and 22, each of the first and second foam cushion components 11 and 22 including layers 16 and 23 that emanate from a base (defined by the portion of components 11 and 22 which extends from the top or bottom of the cushion 11 and 22, respectively to the recessions 14 and 24 and bases of the protrusions 16 and 23, respectively, Figure 3A) and the layers 16 of the first foam cushion component 11 are alternated with the layers 23 of the second foam cushion component along a length of the cushioning article (Figure 3A); wherein each layer of the first and second foam cushion components has a height (defined by the total heights of each of the cushion components 11 and 22, which are 2.0-5.0” and 2.0”-6.0” respectively) and a thickness (defined by the thickness of the each of the first and second bases, which are 0.75-3.5” and 1.0-3.0”, respectively), and wherein a ratio of the height to the thickness is at least 2.5 (where said ratio for the first and second cushion components would have a maximum of 6.67 and 6.0, respectively, determined by the ratio of the largest height to the smallest thickness).
Farnham does not disclose wherein an adhesive is applied between each layer of the first and second foam cushion components only to ends of the layers to thereby enable the layers to collapse. While Farnham does disclose the application of adhesive to the second layers 23, Farnham makes clear that the adhesive is only applied to the tops of the second layers, and that no adhesive exists between the layers 16 and the corresponding surfaces of the recesses 25 of the second foam cushion component 22 (paragraph 0040). This arrangement of adhesive allows for the protrusions 16 to sink into and eventually come in contact with the surfaces of the recesses 25, which provides a progressive support profile to the mattress (paragraph 0036). Modifying this adhesive arrangement would likely diminish the effect of or rid the mattress entirely of this progressive support, rendering Farnham unsuitable for its intended purpose. As such, there is no disclosure, teaching, or suggestion in the prior art such that a rejection of claim 35 may be reasonably maintained.
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
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