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 .
Election/Restrictions
Applicant's election with traverse of Group I (claims 1 – 11) and Species I as represented by Figures 1-2 in the reply filed on 9/25/25 is acknowledged.
The traversal appears to only be with regard to the species, not the restriction between invention claim groups. There is no statement of traversal with regard to the restriction between the inventive claim groups, nor are there any arguments present. The traversal regarding the species is on the ground(s) that the species have the same mechanism of operation and differ only in the arrangement of the elements and that there is no burden because the same classes and subclasses would be searched. This is not found persuasive for the reasons set forth below. The species are mutually exclusive due to the mutually exclusive arrangement of the elements. If the arrangement was not different, they would not be species. The species are patentably distinct due to the mutually exclusive arrangement. However, if applicant believes that they are not patentably distinct, applicant is welcome to state on the record that the species are all obvious variants of each other. Whether the same classes and subclasses would be searched is not dispositive of the serious search burden analysis, nor does it address each and every criteria set forth in the original requirement. Examiner maintains that a serious examination and search burden exists for the reasons set forth in the original requirement, e.g. their mutually exclusive characteristics, different search queries would be required for the various species, and/or the prior art applicable to one would not likely be applicable to other(s).
The requirement is still deemed proper and is therefore made FINAL.
Claims 4, 8, 12-21 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention / species, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 9/25/25.
Drawings
The drawings are objected to because reference numerals are missing for the top connecting surface and the bottom connecting surface (see claim 1, for example).
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the following must be shown or the feature(s) canceled from the claim(s) and no new matter should be entered:
Claim 2: wherein the top mattress layer 12, the bottom mattress layer 14 and the adjustable region 28 independently comprise a foam layer, a gel material layer, a spring layer or a combination thereof
Claim 5: The frame as claimed in claim 5
Claim 5: The actuator as claimed in claim 5
Claim 6: The support system as claimed in claim 6
Claim 9: Wherein the top mattress layer 12, the bottom mattress layer 14 and the adjustable region 28 independently comprise 2 or more layers
Claim 10: Wherein the top mattress layer 12, the bottom mattress layer 14 and the adjustable region 28 are formed from a single layer
Claim 11: Further comprising a frame positioned around the parameter of the top mattress layer 12
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they include the following reference character(s) not mentioned in the description: 27, 29, 31, 33, 35, and 37.
Corrected drawing sheets in compliance with 37 CFR 1.121(d), or amendment to the specification to add the reference character(s) in the description in compliance with 37 CFR 1.121(b) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
The disclosure is objected to because of the following informalities: all instances of parameter should be corrected to be –perimeter--.
Appropriate correction is required.
Claim Objections
The claims are objected to because they include reference characters which are not enclosed within parentheses.
Reference characters corresponding to elements recited in the detailed description of the drawings and used in conjunction with the recitation of the same element or group of elements in the claims should be enclosed within parentheses so as to avoid confusion with other numbers or characters which may appear in the claims. See MPEP § 608.01(m).
Claim 1 is objected to because of the following informalities: typographical error. “a the” should be --a--. Appropriate correction is required.
Claim 11 is objected to because of the following informalities: typographical error. Parameter should be –perimeter--. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 6 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Claim 6 recites “further comprising a support system in the adjustable region to provide support.” While the claim is an original claim, there does not appear to be adequate description in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. The claim provides no clarity as to what the support system is or encompasses. Similarly, the original disclosure fails to provide any clarity or description in that regard. Rather, the specification only mentions it in two instances, neither of which provided the required support: “The method further comprising a support system in the adjustable region 28 to provide support.” and “The adjustable mattress further comprising a support system in the adjustable region 28 to provide support.” See MPEP 2163 for details and, in particular, section I A.
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 1-3, 5-7, 9-11 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 recites “a top head end” and then later again recites “a top head end” in line 8. It is unclear whether the second recitation is attempting to introduce new structure or whether it is intended to be a reference to the previously recited “a top head end.” The recitation lacks proper antecedent basis.
The term “about” in claim 1 is a relative term which renders the claim indefinite. The term 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. Specifically, it is unclear what the metes and bounds are of “about 0 and 180 degrees.” The claim is therefore indefinite.
Claim 2 recites that the “top mattress layer, the bottom mattress layer, and the adjustable region independently comprise a foam layer, a gel material layer, a spring layer or a combination thereof.” It is unclear as to what the recitation intends to claim. It appears that the applicant is claiming that each layer and the region each comprise one or more layers individually or combined, which is confusing and renders the claim indefinite in the context of the required “independently” recitation.
Claim 3 recites that the adjustable region is concurrent with the top foot portion. It is unclear what structural relationship, if any, is being claimed via the limitation “concurrent.” Clarification and/or correction is required.
Claim 7 recites that “the adjustable region comprises preset positions of selected angles.” It is unclear as to how a region can comprise preset positions of selected angles. A region does not comprise positions. The region may be configured to be placed in preset positions of selected angles, however.
Claim 9 suffers from the same issues as with regard to claim 2; see above.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1, 3, 5-7, and 9-10 is/are rejected under 35 U.S.C. 102(a)(1) and/or (a)(2) as being anticipated by Ogle (US Patent No. 6088857).
Re Claim 1
Ogle discloses:
An adjustable mattress (see all figs.) comprising:
a top mattress layer (54 and/or 52) comprising:
a sleeping surface (upper surface) opposite a top connecting surface (lower surface), wherein the top mattress layer comprises a top head portion at a top head end (at the head end of the mattress) in communication with a top foot end at a top foot portion (at the foot end of the mattress);
a bottom mattress layer (this could be any of the lower layers beneath the top mattress layer; see figs. 4-5; for example, the bottom mattress layer may be either or both of layers 24 or 24 in combination with the bottom sheet) comprising:
a bottom connecting surface (upper surface of the bottom mattress layer) aligned with the top connecting surface (see figs. 4-5), wherein the bottom mattress layer comprises a bottom head end that aligns with a top head end (at the head end of the mattress) and is in communication with a the bottom foot end (at the foot end of the mattress) capable of aligning with the top foot end at a bottom foot portion (this capability exists, see figs. 1-5; note that the layers are all aligned);
an adjustable region positioned in at least a portion of the top foot portion to extend from a hinge (hinge sheet 40 / 40b and 48) to the top foot end (hinged region; see fig. 2), wherein the adjustable region is adjustable about the hinge to between about 0 and 180 degrees relative to the bottom foot end (see figs. 1-2 and 5).
Re Claim 3
Ogle discloses:
wherein the adjustable region is concurrent with the top foot portion (figs. 1-3).
Re Claim 5
Ogle discloses:
further comprising a frame (34 or 23 or 50) connected (directly and/or indirectly) to the hinge to facilitate the movement of the adjustable region and lock the adjustable region in place (the above is merely intended use; It has been held that the recitation with respect to the matter in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations. Ex part Masham, 2 USPQ2d 1647 (1987).; nevertheless, each of the identified elements facilitates movement of the adjustable region by permitting the movement to occur / not preventing the movement and lock the adjustable region in place by encompassing the final arrangement of the elements and not permitting shifting of the region beyond its intended position; note that the region could be the entire part that flips over, the connecting line, or any amount / size of the structure in between those two bounds) or an actuator in communication with the hinge to actively adjust the position of the adjustable region.
Re Claim 6
Ogle discloses:
further comprising a support system (22) in the adjustable region to provide support (see figs. 1-2 and 5).
Re Claim 7
Ogle discloses:
wherein the adjustable region comprises preset positions of selected angles (see figs. 1-3, the preset positions of selected angles are the angles within the range of motion).
Re Claim 9
Ogle discloses:
wherein the top mattress layer, the bottom mattress layer and the adjustable region independently comprise 2 or more layers (see figs. 1-5 and mapping above) .
Re Claim 10
Ogle discloses:
wherein the top mattress layer (54 or 52), the bottom mattress layer (this could be any of the lower layers beneath the top mattress layer; see figs. 4-5; for example, the bottom mattress layer may be either of layers 24) and the adjustable region (the region being any of the single layers; see figs. 2 and 4-5) are formed from a single layer (see above, see figs. 2 and 4-5) or the bottom mattress layer and the adjustable region comprises a polyurethane foam.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 2 and 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ogle (US Patent No. 6088857).
Re Claim 2
Ogle discloses all claim limitations, see above, including:
wherein the top mattress layer (54 in combination with 52, note that 52 is disclosed as foam), … and the adjustable region (the region would include the foam layer; see figs. 1-3 and 5) independently comprise a foam layer, a gel material layer, a spring layer or a combination thereof (see above).
Ogle does not explicitly disclose that the bottom mattress layer independently comprises a foam layer, a gel material layer, a spring layer or a combination thereof. Ogle discloses that 24 is “An insulator pad or layer of cotton, felt or similar padding material” which suggests the use of other materials. It would have been obvious to one having ordinary skill in the art prior to the effective filing date to have the bottom mattress layer independently comprises a foam layer, a gel material layer, a spring layer or a combination thereof, since it has been held to be within the general skill of a worker in the art to select known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416. Here, selecting the material to be a foam layer and/or a gel layer at a minimum would have been readily known and obvious for the purpose of providing an alternate material for padding / insulation as suggested.
Re Claim 10 (alternatively rejected below; see above as well)
Ogle discloses all claim limitations, see above, except:
wherein … the bottom mattress layer and the adjustable region comprises a polyurethane foam.
Ogle discloses that 24 is “An insulator pad or layer of cotton, felt or similar padding material” which suggests the use of other materials. Ogle also discloses that the top layer includes foam. The adjustable region, see above, could include either or both of the top layer and the bottom layer. It would have been obvious to one having ordinary skill in the art prior to the effective filing date to have the bottom mattress layer and the adjustable region comprises a polyurethane foam, since it has been held to be within the general skill of a worker in the art to select known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416. Here, selecting the material to be a polyurethane foam would have been readily known and obvious for the purpose of providing an alternate material for padding / insulation as suggested.
Claim(s) 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ogle (US Patent No. 6088857) in view of Official Notice.
Re Claim 11
Ogle discloses:
further comprising a frame (framing wires 23).
Ogle does not explicitly disclose that the frame is positioned around the [perimeter] of the top mattress layer. The drawings do not necessarily show the required location / arrangement. However, examiner hereby takes official notice that it is old and well known that framing wires (i.e. the frame) are positioned around the perimeter of mattress layers / mattresses, including the top mattress layer, for the purpose of providing support, rigidity, and/or structure to the apparatus. It would therefore have been obvious to one having ordinary skill in the art prior to the effective filing date to have the frame arranged / positioned / located as claimed for the purpose(s) articulated above (see above).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Additional hinged mattress / bed structures are provided, some of which have hinged sections at the foot end and others which have them at the middle or the head end.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAVID E SOSNOWSKI whose telephone number is (571)270-7944. The examiner can normally be reached 8:30 AM - 3:30 PM and 9 PM through 11:59 PM Monday through Friday, generally.
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 at (571)272-8525. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DAVID E. SOSNOWSKI/
Primary Patent Examiner
Art Unit 3673
/David E Sosnowski/Primary Patent Examiner, Art Unit 3673