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 .
Status of the Application
Claims 1—3, 5, 8, 10—12, 16—18 and 21—25 have been examined in this application. Claims 4, 6-7, 9, 13-15, 19 and 20 have been cancelled. Claims 21—25 have been added. This communication is a Non-Final Rejection in response to Applicants “Request for Continued Examination (RCE)” filed [02/16/2026].
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 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.
Claim(s) 1—5 & 8—12, 14, 16—18, 23 & 25 is/are rejected under 35 U.S.C. 103 as being unpatentable over U.S Patent 9,462,902 B1 to Rukel (Rukel hereafter) in view of U.S Patent Application 2017/0340131 A1 to Schmidt (Schmidt hereafter) in view of U.S Patent Application 2005/0278852 A1 to Wahrmund (Wahrmund hereafter).
As per claim 1, Rukel teaches
A pillow (100—Fig.1; Col 4 line 49—56) comprising:
a case (105—Fig.1; Col 4 line 49—56) defining an inner cavity (115—Fig.1; Col 4 line 49—56); and a filler material disposed within the inner cavity (710—Fig.7; Col 4 line 49—56), wherein the filler material includes a predefined amount of the microfibers intermixed with a plurality of defined geometric shaped foam elements (715—Fig.7; Col 6 line 16—20) that create open spaces therebetween for enhancing airflow through a predefined amount of the filler material (Col 6 line 47—65),
Rukel does not teach comprising at least one of a skewed cube elements and cross-shaped elements that create open spaces therebetween for enhancing airflow through the filler material wherein the predefined amount of the filler material has a density of between 3.4 lb/ft3 and 6.0 lb/ft3 wherein an airflow through the case and the predefined amount of the filler material disposed within the case is within a range 5.00 and 8.00 CFM (ft3/minute).
Schmidt teaches comprising at least one of a skewed cube elements and cross-shaped elements that create open spaces therebetween for enhancing airflow through the filler material (100G & 100H—Fig.1; para [0041]).
Accordingly, it would have been obvious to one of ordinary skill in the art before the invention was effectively filed to have combined Rukel (directed to a pillow covering configured to enable airflow through the case alone at a flow rate greater than the airflow through the predefined amount of the filling) and Schmidt (directed to a pillow including a plurality of geometric shaped foam elements comprising both cross-shaped foam elements and skewed cube elements) and arrived at a pillow including a plurality of geometric shaped foam elements comprising both cross-shaped foam elements and skewed cube elements. One of ordinary skill in the art would have been motivated to make such a combination to provide a pillow with filler pieces that never engage each other completely, but instead allow free air between them as taught in Schmidt (para [0038]).
Rukel (as modified) does not wherein the predefined amount of the filler material has a density of between 3.4 lb/ft3 and 6.0 lb/ft3 wherein an airflow through the case and the predefined amount of the filler material disposed within the case is within a range 5.00 and 8.00 CFM (ft3/minute).
Wahrmund teaches wherein the predefined amount of the filler material has a density of between 3.4 lb/ft3 and 6.0 lb/ft3 (Claim 10; para [0056] filler foam density 4.5 lb/ft3)wherein an airflow through the case and the predefined amount of the filler material disposed within the case is within a range 5.00 and 8.00 CFM (ft3/minute) (Claim 23, para [0056] air flow of filler foam is above 2.5 CFM).
Accordingly, it would have been obvious to one of ordinary skill in the art before the invention was effectively filed to have combined Rukel (directed to a pillow covering configured to enable airflow through the case alone at a flow rate greater than the airflow through the predefined amount of the filling) and Schmidt (directed to a pillow including a plurality of geometric shaped foam elements comprising both cross-shaped foam elements and skewed cube elements) and Wahrmund (directed to an airflow through the case and the predefined amount of the filling material disposed within the case is within a range 5.00 and 8.00 CFM wherein the predefined amount of the filler material has a density of between 3.4 lb/ft3 and 6.0 lb/ft3) and arrived at a pillow configured to enable good airflow through the case alone at a flow rate greater than the airflow through the predefined amount of the filling and an airflow through the case and the predefined amount of the filling material disposed within the case is within a range 5.00 and 8.00 CFM wherein the predefined amount of the filler material has a density of between 3.4 lb/ft3 and 6.0 lb/ft3. One of ordinary skill in the art would have been motivated to make such a combination to provide a pillow that improves airflows by providing viscoelastic foam that with openings as taught in Wahrmund (para [0061]) and to further enhance the pillow in that it would produce a foam material having a firmness selected so that the pillow provides effective support to a user (Wahrmund claim 11).
As per claim 2, Rukel (as modified) teaches The pillow as recited in claim 1.
Rukel does not teach, wherein an airflow through the case and the predefined amount of the filler material disposed within the case is within a 6.00 and 7.50 CFM (ft3/minute).
Wahrmund teaches, wherein an airflow through the case and the predefined amount of the filler material disposed within the case is within a 6.00 and 7.50 CFM (ft3/minute) (Claim 23; para [0056] air flow of filler foam is above 2.5 CFM).
Accordingly, it would have been obvious to one of ordinary skill in the art before the invention was effectively filed to have combined Rukel (directed to a pillow covering configured to enable airflow through the case alone at a flow rate greater than the airflow through the predefined amount of the filling) and Schmidt (directed to a pillow including a plurality of geometric shaped foam elements comprising both cross-shaped foam elements and skewed cube elements) and Wahrmund (directed to an airflow through the case and the predefined amount of the filling material disposed within the case is within a range 6.00 and 7.50 CFM) and arrived at a pillow configured to enable good airflow through the case alone at a flow rate greater than the airflow through the predefined amount of the filling and an airflow through the case and the predefined amount of the filling material disposed within the case is within a range 6.00 and 7.50 CFM. One of ordinary skill in the art would have been motivated to make such a combination to provide a pillow that improve airflows by providing viscoelastic foam that with openings as taught in Wahrmund (para [0061]).
As per claim 3, Rukel (as modified) teaches The pillow as recited in claim 1.
Rukel does not teach, wherein an airflow through the case and the predefined amount of the filler material disposed within the case is about 7.25 CFM (ft3/minute).
Wahrmund teaches, wherein an airflow through the case and the predefined amount of the filler material disposed within the case is about 7.25 CFM (ft3/minute) (Claim 23; para [0056] air flow of filler foam is above 2.5 CFM).
Accordingly, it would have been obvious to one of ordinary skill in the art before the invention was effectively filed to have combined Rukel (directed to a pillow covering configured to enable airflow through the case alone at a flow rate greater than the airflow through the predefined amount of the filling) and Schmidt (directed to a pillow including a plurality of geometric shaped foam elements comprising both cross-shaped foam elements and skewed cube elements) and Wahrmund (directed to an airflow through the case and the predefined amount of the filling material disposed within the case is about 7.25 CFM) and arrived at a pillow configured to enable good airflow through the case alone at a flow rate greater than the airflow through the predefined amount of the filling and an airflow through the case and the predefined amount of the filling material disposed within the case is about 7.25 CFM. One of ordinary skill in the art would have been motivated to make such a combination to provide a pillow that improves airflows by providing viscoelastic foam that with openings (Claim 11).
As per claim 5, Rukel (as modified) teaches The pillow as recited in claim 1.
Rukel does not teach, wherein the predefined amount of the filler material comprises a density of between 4.0 (lb/ft3) and 5.3 (lb/ft3).
Wahrmund teaches , wherein the predefined amount of the filler material comprises a density of between 4.0 (lb/ft3) and 5.3 (lb/ft3) (Claim 10; para [0056] filler foam density 4.5 lb/ft3).
Accordingly, it would have been obvious to one of ordinary skill in the art before the invention was effectively filed to have combined Rukel (directed to a pillow covering configured to enable airflow through the case alone at a flow rate greater than the airflow through the predefined amount of the filling) and Schmidt (directed to a pillow including a plurality of geometric shaped foam elements comprising both cross-shaped foam elements and skewed cube elements) and Wahrmund (directed to an airflow through the case and the predefined amount of the filling material comprises a density of between 4.0 (lb/ft3) and 5.3 (lb/ft3)) and arrived at a pillow configured to enable good airflow through the case alone at a flow rate greater than the airflow through the predefined amount of the filling and an airflow through the case and the predefined amount of the filling material comprises a density of between 4.0 (lb/ft3) and 5.3 (lb/ft3). One of ordinary skill in the art would have been motivated to make such a combination to provide a pillow that provides effective support to a user as taught in Wahrmund (Claim 11).
As per claim 8, Rukel (as modified) teaches The pillow as recited in claim 1.
Rukel does not teach, wherein the plurality of geometric shaped foam elements comprises both cross-shaped foam elements and skewed cube elements.
Schmidt teaches, wherein the plurality of geometric shaped foam elements comprises both cross-shaped foam elements and skewed cube elements (100G & 100H—Fig.1; para [0041]).
Accordingly, it would have been obvious to one of ordinary skill in the art before the invention was effectively filed to have combined Rukel (directed to a pillow covering configured to enable airflow through the case alone at a flow rate greater than the airflow through the predefined amount of the filling) and Schmidt (directed to a pillow including a plurality of geometric shaped foam elements comprising both cross-shaped foam elements and skewed cube elements) and Wahrmund (directed to an airflow through the case and the predefined amount of the filling material disposed within the case is within a range 5.00 and 8.00 CFM) and arrived at a pillow configured to enable good airflow through the case alone at a flow rate greater than the airflow through the predefined amount of the filling and an airflow through the case and the predefined amount of the filling material disposed within the case is within a range 5.00 and 8.00 CFM including a plurality of geometric shaped foam elements comprising both cross-shaped foam elements and skewed cube elements. One of ordinary skill in the art would have been motivated to make such a combination to provide a pillow with filler pieces that never engage each other completely, but instead allow free air between them as taught in Schmidt (para [0038]).
As per claim 10, Rukel (as modified) teaches
The pillow as recited in claim 1, wherein the case includes a closeable opening providing access to the inner cavity (115—Fig.1; Col 4 line 49—56: inner cavity positioned within 115) to provide for adjustment to the predefined amount of filler material within the inner cavity (Col 6 line 16—20).
As per claim 11, Rukel (as modified) teaches
The pillow as recited in claim 1, wherein the case is configured to enable airflow through the case alone (Col 4 line 49—56) at a flow rate greater than the airflow through the predefined amount of the filler material (Claim 12 covering air flow rating 140-180CFM greater than the airflow through the filler material).
As per claim 12, Rukel teaches:
A pillow (100—Fig.1; Col 4 line 49—56) comprising:
a case (105—Fig.1; Col 4 line 49—56) defining an inner cavity (115—Fig.1; Col 4 line 49—56: inner cavity positioned withing opening 115) and a closeable opening providing access to the inner cavity (115—Fig.4); and
a filler material disposed within the inner cavity (710—Fig.7; Col 6 line 50—66), the filler material including a predefined amount of microfibers intermixed with a plurality of defined geometric shaped foam elements (715—Fig.7; Col 6 line 50—66) that define open spaces for an airflow (Col 4 line 49—56).
Rukel does not teach: geometric shaped foam elements comprising at least one of skewed cube elements and a crossed-shaped elements that define open spaces for an airflow, and wherein an airflow through the case and the predefined amount of the filler material disposed within the case is within a range 5.00 and 8.00 CFM (ft3/minute).
Schmidt teaches geometric shaped foam elements comprising at least one of skewed cube elements and a crossed-shaped elements that define open spaces for an airflow (100G & 100H—Fig.1; para [0041]).
Accordingly, it would have been obvious to one of ordinary skill in the art before the invention was effectively filed to have combined Rukel (directed to a pillow covering configured to enable airflow through the case alone at a flow rate greater than the airflow through the predefined amount of the filling) and Schmidt (directed to a pillow including a plurality of geometric shaped foam elements comprising both cross-shaped foam elements and skewed cube elements) and arrived at a pillow including a plurality of geometric shaped foam elements comprising both cross-shaped foam elements and skewed cube elements. One of ordinary skill in the art would have been motivated to make such a combination to provide a pillow with filler pieces that never engage each other completely, but instead allow free air between them as taught in Schmidt (para [0038]).
Rukel nor Schmidt teach and wherein an airflow through the case and the predefined amount of the filler material disposed within the case is within a range 5.00 and 8.00 CFM (ft3/minute) .
Wahrmund teaches and wherein an airflow through the case and the predefined amount of the filler material disposed within the case is within a range 5.00 and 8.00 CFM (ft3/minute) (Claim 23; para [0056] air flow of filler foam is above 2.5 CFM).
Accordingly, it would have been obvious to one of ordinary skill in the art before the invention was effectively filed to have combined Rukel (directed to a pillow covering configured to enable airflow through the case alone at a flow rate greater than the airflow through the predefined amount of the filling) and Schmidt (directed to a pillow including a plurality of geometric shaped foam elements comprising both cross-shaped foam elements and skewed cube elements) and Wahrmund (directed to an airflow through the case and the predefined amount of the filling material disposed within a range 5.00 and 8.00 CFM) and arrived at a pillow configured to enable good airflow through the case alone at a flow rate greater than the airflow through the predefined amount of the filling and an airflow through the case and the predefined amount of the filling material disposed within a range 5.00 and 8.00 CFM. One of ordinary skill in the art would have been motivated to make such a combination to provide a pillow that improve airflows by providing viscoelastic foam that with openings as taught in Wahrmund (Claim 11).
As per claim 16, Rukel teaches The pillow as recited in claim 12.
Rukel does not teach wherein the plurality of geometric shaped foam elements comprises both a plurality of cross-shaped foam elements and the plurality of skewed cube elements.
Schmidt teaches wherein the plurality of geometric shaped foam elements comprises both a plurality of cross-shaped foam elements and the plurality of skewed cube elements (100G & 100H—Fig.1; para [0041]).
Accordingly, it would have been obvious to one of ordinary skill in the art before the invention was effectively filed to have combined Rukel (directed to a pillow covering configured to enable airflow through the case alone at a flow rate greater than the airflow through the predefined amount of the filling and Schmidt (directed to a pillow including a plurality of geometric shaped foam elements comprising both cross-shaped foam elements and skewed cube elements) and arrived at a pillow configured to enable good airflow including a plurality of geometric shaped foam elements comprising both cross-shaped foam elements and skewed cube elements. One of ordinary skill in the art would have been motivated to make such a combination to provide a pillow with filler pieces that never engage each other completely, but instead allow free air between them as taught in Schmidt (para [0038]).
As per claim 17, Rukel (as modified) teaches
The pillow as recited in claim 12, wherein the case is configured to enable airflow through the case (Col 4 line 49—56) alone at a flow rate greater than the airflow through the predefined amount of the filler material (Claim 12 covering air flow rating 140-180CFM greater than the airflow through the filler material).
As per claim 18, Rukel teaches:
A method of assembling a pillow (100—Fig.1; Col 4 line 49—56) comprising:
forming a filler material including a predefined amount of microfibers with a density intermixed with a plurality of defined geometric shaped foam elements (715—Fig.7; Col 4 line 49—56) that define open spaces for an airflow; preparing a case (105—Fig.1; Col 4 line 49—56) with a closeable opening (115—Fig.4) providing access to an inner cavity for the filler material (115—Fig.1; Col 4 line 49—56: inner cavity positioned withing opening 115); filling the inner cavity with a predefined amount of the filler material (710—Fig.7; Col 4 line 49—56); and providing an additional amount of filler material (405—Fig.4; Col 6 lines 3—9) outside of the case to enable adjustment to an amount of filler material disposed within the cavity (Col 6 lines 3—9).
Rukel does not teach: a density of between 3.4 lb/ft3 and 6.0 lb/ft3 wherein a plurality of geometric shaped foam elements comprises one of a plurality of skewed cube elements and a plurality of cross-shaped elements: preparing the filler material to provide an airflow through the case and the predefined amount of the filler material disposed within the case is within a range 6.00 and 7.50 CFM (ft3/minute).
Schmidt teaches wherein the plurality of geometric shaped foam elements comprises one of a plurality of skewed cube elements and a plurality of cross-shaped elements: (100G & 100H—Fig.1; para [0041]).
Accordingly, it would have been obvious to one of ordinary skill in the art before the invention was effectively filed to have combined Rukel (directed to a pillow covering configured to enable airflow through the case alone at a flow rate greater than the airflow through the predefined amount of the filling) and Schmidt (directed to a pillow including a plurality of geometric shaped foam elements comprising both cross-shaped foam elements and skewed cube elements) and arrived at a pillow including a plurality of geometric shaped foam elements comprising both cross-shaped foam elements and skewed cube elements. One of ordinary skill in the art would have been motivated to make such a combination to provide a pillow with filler pieces that never engage each other completely, but instead allow free air between them as taught in Schmidt (para [0038]).
Rukel nor Schmidt teach a density of between 3.4 lb/ft3 and 6.0 lb/ft3 preparing the filler material to provide an airflow through the case and the predefined amount of the filler material disposed within the case is within a range 6.00 and 7.50 CFM (ft3/minute) .
Wahrmund teaches preparing the filler material to provide an airflow through the case and the predefined amount of the filler material disposed within the case is within a range 6.00 and 7.50 CFM (ft3/minute) (Claim 23; para [0056] air flow of filler foam is above 2.5 CFM).
Accordingly, it would have been obvious to one of ordinary skill in the art before the invention was effectively filed to have combined Rukel (directed to a pillow covering configured to enable airflow through the case alone at a flow rate greater than the airflow through the predefined amount of the filling) and Schmidt (directed to a pillow including a plurality of geometric shaped foam elements comprising both cross-shaped foam elements and skewed cube elements) and Wahrmund (directed to an airflow through the case and the predefined amount of the filling material disposed within the case is about 7.5 CFM) and arrived at a pillow configured to enable good airflow through the case alone at a flow rate greater than the airflow through the predefined amount of the filling and an airflow through the case and the predefined amount of the filling material disposed within the case is about 7.5 CFM. One of ordinary skill in the art would have been motivated to make such a combination to provide a pillow that improve airflows by providing viscoelastic foam that with openings as taught in Wahrmund (Claim 11).
As per claim 23, Rukel (as modified) teaches:
The pillow as recited in claim 1, wherein the predefined amount of microfibers intermixed with the plurality of defined geometric shaped foam elements discourages interlocking or alignment of the foam elements to maintain the open spaces therebetween (Col 6 lines 58—67 & Col 7 lines 1—5: non interlocking produced by microfibers).
As per claim 25, Rukel (as modified) teaches:
The method as recited in claim 18, wherein forming the filler material includes intermixing the predefined amount of microfibers with the plurality of defined geometric shaped foam elements such that the microfibers discourage interlocking of the foam elements to maintain the open spaces for airflow (Col 6 lines 58—67 & Col 7 lines 1—5: non interlocking produced by microfibers).
Allowable Subject Matter
Claim 21, 22 & 24 are 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:
Regarding dependent claims 21, 22, the closest prior art of record U.S Patent 9,462,902 B1 to Rukel teaches a pillow provided with microfibers provided within a pillow case configured to be filled with microfibers intermixed with various geometric shapes. The combination structure present in claim 21 & 22 was not found in U.S. Patent 9,462,902 . Specifically, the limitation with respect to a cube shape with sides that are not parallel nor perpendicular to each other and the skewed cube elements includes side surfaces that are concave or convex to prevent formation of a tight mating fit between the skewed cube elements in combination with teaching geometric shapes comprising at least one of a skewed cube elements and cross-shaped elements intermixed with a predefined amount of microfibers.
The teachings of U.S. Patent Application 2017/0340131 A1 to Schmidt teaches a pillow provided with geometric shapes comprising skewed elements and cross-shaped elements. However, teachings were silent with respect to a cube shape with sides that are not parallel nor perpendicular to each other and the skewed cube elements includes side surfaces that are concave or convex to prevent formation of a tight mating fit between the skewed cube elements.
The teaching of U.S. Patent 7,255,917 B2 to Rochlin teaches a pillow provided with filler elements provided with a geometric shape. While Rochlin may suggest a pillow including filler elements provided with a geometric shape, the teachings are silent with respect to a cube shape with sides that are not parallel nor perpendicular to each other and the skewed cube elements includes side surfaces that are concave or convex to prevent formation of a tight mating fit between the skewed cube elements in combination with teaching geometric shapes comprising at least one of a skewed cube elements and cross-shaped elements intermixed with a predefined amount of microfibers. The examiner submits that modifying the geometric shapes of Rukel with the cube shape and cross shaped elements of Schmidt and further modifying the cube and cross shape configurations of Schmidt may not be considered obvious to one of ordinary skill in the art.
Regarding dependent claims 24, the closest prior art of record U.S Patent 9,462,902 B1 to Rukel teaches a pillow provided with microfibers provided within a pillow case configured to be filled with microfibers intermixed with various geometric shapes. The combination structure present in claim 24 was not found in U.S. Patent 9,462,902 . Specifically, the limitation with respect to wherein the airflow through the case and the predefined amount of the filler material disposed within the case is measured using a testing apparatus having an inlet opening of approximately 6 inches in diameter, a load of approximately 10 pounds exerted to push the inlet against a surface of the pillow, and a suction rate of approximately 0.5 inches of water.
The teachings of U.S. Patent Application 2017/0340131 A1 to Schmidt teaches a pillow provided with geometric shapes comprising skewed elements and cross-shaped elements. However, teachings were silent with respect to wherein the airflow through the case and the predefined amount of the filler material disposed within the case is measured using a testing apparatus having an inlet opening of approximately 6 inches in diameter, a load of approximately 10 pounds exerted to push the inlet against a surface of the pillow, and a suction rate of approximately 0.5 inches of water.
The teachings of U.S Patent Application 2005/0278852 A1 to Wahrmund teaches a pillow provided with an airflow through the case and the predefined amount of the filling material comprises a density of between 4.0 (lb/ft3) and 5.3 (lb/ft3). While Wahrmund may suggest an air flow which may be measured according to test method ASTM D3574, in which air flow in cubic feet per minute drawn through a two inch by two inch by one inch foam sample at one-half inch water column pressure differential is measure (Wahrmund para [0048]), teachings were silent with respect to wherein the airflow through the case and the predefined amount of the filler material disposed within the case is measured using a testing apparatus having an inlet opening of approximately 6 inches in diameter, a load of approximately 10 pounds exerted to push the inlet against a surface of the pillow, and a suction rate of approximately 0.5 inches of water. Therefor upon exhausting the art, it is concluded by the examiner for those reasons stated above that inconsideration with deficiencies of the prior art, that applicant’s invention would be considered non-obvious in light of the prior art.
Response to Arguments
Applicant's arguments filed 02/16/2026 have been fully considered but they are not persuasive.
Applicant’s Arguments:
Regarding the Non-Final Rejection filed on 04/02/2025, the Applicant argues,
Regarding claims 12 & 18, Claims 1-5 and 9-11 are patentable over Rukel (US 9,462,902) in view of Wahrmund et al. (US 2005/0278852) because the cited prior art neither discloses nor teaches the features recited in at least amended claim 1 and further, the proposed combination is not supported by a proper prima facia case of obviousness. The proposed combination of Rukel with Wahrmund is improper because it would fundamentally change the principle of operation of Rukel and render it unsatisfactory for its intended purpose.
Applicant understands that Wahrmund may be cited for the disclosures limited to the airflow. However, "A prior art reference must be considered in its entirety, i.e., as a whole, including portions that would lead away from the claimed invention." MPEP § 2141.02 (emphasis in original). In other words, the specific features that provide the relied upon flow must also be considered when considering if a proper prima facia case of obviousness is present.
The Wahrmund pillow uses a viscoelastic foam that is a non-adjustable filler. Moreover, the foam is disclosed as a "hyper soft high air flow viscoelastic foam" (Abstract; [0009]) that is a dense, slow-recovery "memory" material designed for structured cores/shells (Figs. 1, 8, 16: contoured slabs that "contour itself to the person" and maintain shape under load. [0006]. If such a material were provided to form Rukel's loose configuration, the viscoelastic foam would clump and lose adjustability. For at least this reason, a POSITA would not modify Rukel as proposed by the Examiner in view of Wahrmund as it defeats the very purpose and principal of operation of the loose-fill design.
Additionally, even assuming arguendo that Rukel could be combined with Wahrmund, such a combination is improper because the secondary references teach away from the claimed modification. The Federal Circuit explained in In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994) that "A reference may be said to teach away when a person of ordinary skill, upon reading the reference, would be discouraged from following the path set out in the reference, or would be led in a direction divergent from the path that was taken by the applicant."
Rukel discloses a customizable "health pillow" (Abstract) with a case (105) and loose filler material (710) that is adjustable via a closeable opening (Col. 5:1-10; Fig. 6: 505). Wahrmund, however, teaches away from the use of loose filler as is provided by Rukel. Wahrmund is directed to solid, contoured viscoelastic foam in structured forms, such as a "contoured core" (32). The contoured core is a firm, layered core/shell configuration ([0005]-[0006];[0056]).
A POSITA reading Wahrmund would be discouraged from applying its teachings to Rukel's loose, fluffed filler because Viscoelastic foam is dense and slow-recovery ([0006]: "tends to take the shape of the person... contours itself"). The slow-recovery undermines the adjustability that is a principal of Rukel. (Col. 5: "user-customizable... to meet... desires"). Moreover, loose viscoelastic pieces would collapse and lose resiliency, as Wahrmund itself notes for unstructured foam ([0007]).
Wahrmund's airflow solution requires structured slabs (e.g., Fig. 16: mattress topper with bonded layers), not loose adjustable material. Modifying Rukel to include Wahrmund's foam would sacrifice the very open spaces Rukel relies on (Col. 4:55), teaching away from the claimed "sustained" airflow through compression (spec. [0027]-[0028]).
Accordingly, for at least the above reasons, a proper prima facia case of obviousness is not present, and reconsideration and withdrawal of the rejections based on the proposed combination is believed warranted and is requested.
2) Regarding Claims 6-8, depend from an allowable base claim and are therefore allowable without further regard to additional patentable features contained therein. The further addition and explanation in view of Schmidt (US 2017/0340131) does not correct the deficiencies in the base combination.
Moreover, 12, 14, and 16-18 are patentable for the same reasons explained above with regard to claim 1. The proposed modification of the base reference is not supported by a proper prima facia case of obviousness. Schmidt provides no guidance on "preparing" filler for 5.00- 8.00 CFM via ASTM D3574 (spec. [0030]). Its focus on mattress-level support ([0050]) discourages the softer, adjustable pillow filler of Rukel.
Schmidt discloses foam "filling elements" (100) with "arms" and "contour recesses" (e.g., cross-shaped 100A, star-shaped 100F; Fig. 1) to retain "at least some air between pieces" in the "uncompressed state" ([0008]-[0009]; [0037]). It targets pillows and duvets but emphasizes elastic recovery and support via rigid, interlocking-resistant shapes ([0010]: "better at retaining elastic deformation").
Schmidt teaches away from the claimed modification of Rukel for at least the reason that Schmidt's shapes are pure foam (no microfibers; [0030]), designed to prevent collapse under load ([0051]: "recesses... hinder the foam pieces from taking up the full space"). Intermixing with microfibers would fill the recesses, reducing open spaces and airflow, directly contrary to Schmidt's goal of "adding air to the comfort item" ([0009]). Moreover, Schmidt teaches away from such "non-planar" irregularity, as it relies on precise recesses for air retention (See Schmidt, [0018]: "contour recesses... smaller than... arms").
Wahrmund adds nothing to overcome the deficiencies of Schmidt, as the Wahrmund structured visco foam slabs further teach away from Schmidt's loose pieces (which would lose "high resiliency" in a pillow context).
Accordingly, for at least these reasons reconsideration and withdrawal of the rejections is believed warranted and is requested.
3) Regarding claims 21-25 Claims 21-24 depend from claim 1. New claim 25 depends from claim 18. New claim 21 recites that "each of the skewed cube elements comprise a cube shape with sides that are not parallel nor perpendicular to each other." Support for this feature is present in the application as originally filed. New claim 22 recites that "each of the skewed cube elements includes side surfaces that are concave or convex to prevent the formation of a tight mating fit between the skewed cube elements." New claim 23 recites that "the predefined amount of microfibers intermixed with the plurality of defined geometric shaped foam elements discourages interlocking or alignment of the foam elements to maintain the open spaces therebetween." New 24 recites that the airflow through the case and the predefined amount of the filler material disposed within the case is measured using a testing apparatus having an inlet opening of approximately 6 inches in diameter, a load of approximately 10 pounds exerted to push the inlet against a surface of the pillow, and a suction rate of approximately 0.5 inches of water. New claim 25 recites that "the step of forming the filler material includes intermixing the predefined amount of microfibers with the plurality of defined geometric shaped foam elements such that the microfibers discourage interlocking of the foam elements to maintain the open spaces for airflow." The claims are supported by the application as filed and are not disclosed by the cited prior art.
Examiner's Response to Arguments:
The examiner respectfully disagrees to the Applicant’s Arguments for the following reasons
1) Regarding claim(s) 1, 12 & 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over U.S Patent 9,462,902 B1 to Rukel (Rukel hereafter) in view of U.S Patent Application 2017/0340131 A1 to Schmidt in view of U.S Patent Application 2005/0278852 A1 to Wahrmund as presented above.
The examiner highlights that Rukel teaches a pillow with a filler material provided with a shredded foam. Wahrmund also teaches a pillow provided with a foam core. The foam of Wahrmund has properties including a prescribed airflow rate and a given density. The examiner is therefore modifying the filler material properties of Rukel with the foam properties of Wahrmund’s foam structure. The examiner maintains that this modification does not teach away from the teachings of Rukel but rather enhances the pillow because modifying the airflow capabilities of Rukel’s shredded foam would provide a noticeable improvement to a person resting on such foam in terms of the cooler feeling as compared to conventional viscoelastic foam (Wahrmund para [0061]). In addition further modifying the density properties of Rukel with the density properties taught by Wahrmund would further enhance the pillow in that it would produce a foam material having a firmness selected so that the pillow provides effective support to a user (Wahrmund claim 11).
2) Regarding claim(s) 2—5 & 8—11, 14, 16—17, 23 & 25 is/are rejected under 35 U.S.C. 103 as being unpatentable over U.S Patent 9,462,902 B1 to Rukel (Rukel hereafter) in view of U.S Patent Application 2017/0340131 A1 to Schmidt in view of U.S Patent Application 2005/0278852 A1 to Wahrmund as presented above.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
U.S Patent 7,255,917 B2 to Rochlin discloses Flexible filtering filling material consisting of pieces that are 100% open cell reticulated polyurethane foam.
W.I.P.O Document 2015012859-A1 to Mikkelsen discloses a support cushion for is provided that includes a core comprised of a first flexible foam and a sleeve comprised of a second flexible foam
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Deborah T Gedeon whose telephone number is (571)272-8863. The examiner can normally be reached Mon - Fri 8:30am to 4:30pm EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Justin Mikowski can be reached on 571-272-8525. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/D.T.G./Examiner, Art Unit 3673 03/05/2026
/JUSTIN C MIKOWSKI/Supervisory Patent Examiner, Art Unit 3673