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.
Claim(s) 1-5, 9-12, 14, 16-22, and 24 is/are rejected under 35 U.S.C. 103 as being unpatentable over Holbrook (US 2018/0325291) in view of Alletto (US 8,646,134).
Regarding Claim 1, Holbrook discloses a dual performance pillow (10), comprising:
a top panel (20) having a plurality of sides;
a bottom panel (22) having a plurality of sides;
at least one gusset panel (24) extending between and connected to the top panel and the bottom panel at at least one respective top panel side and bottom panel side;
a closure (18) at the at least one respective top panel side and bottom panel side to close and open the pillow at the at least one gusset panel; and
a fill (14);
wherein the others of the plurality of top panel sides and bottom panel sides are joined to one another (see Figs. 4-13B),
wherein when the at least one closure is closed and the at least one gusset panel is concealed, air flow into and out of the pillow is restricted and when the at least one closure is open and the at least one gusset panel is exposed, air flow into and out of the pillow is unrestricted. Holbrook states in para. [0043] that “in the first condition, the gusset 24 or a portion of the gusset 24 positioned between the first and second sections 30, 32 is received within the interior space 16 and enclosed in the interior space 16 by the first and layers 20, 22. That is, the gusset 24 or a portion of the gusset 24 may be folded or otherwise positioned in the interior space 16 and closed from direct exposure to ambient atmosphere in the first condition” and “In the second condition, the gusset 24 is expanded to extend between, and space apart the first and second layers 20, 22. In this condition, the condition, the gusset 24 is directly exposed to ambient atmosphere and forms a portion of the periphery of the pillow cover 12, e.g., an expanded pillow” (emphasis added).
Holbrook fails to disclose wherein the gusset panel is formed from a material having less resistance to air flow than a material of the top panel and a material of the bottom panel. Alletto teaches wherein a gusset panel (20) is formed from a material having less resistance to air flow than a material of the top panel (16) and a material of the bottom panel (18, see claim 17 of Alletto). Holbrook and Alletto are analogous art because they are from the same field of endeavor, i.e. pillows. It would have been obvious to one having ordinary skill in the art at the time the invention was filed to modify the top panel, bottom panel, and gusset materials of Holbrook with the porosities of Alletto. The motivation would have been to provide for lateral ventilation between the top and bottom panel, thus permitting a cooling effect while a user is resting or sleeping (Alletto: see Col. 1, Lines 34-36).
Regarding Claim 2, Holbrook discloses wherein the at least one closure is one closure that fully surrounds the top panel sides and the bottom panel sides and extends about a periphery of the pillow, and wherein the at least one gusset panel is one gusset panel that extends about all of the sides of the top panel and the bottom panel (see para. [0014] and Figs. 13A/B).
Regarding Claim 3, Holbrook discloses wherein the at least one closure is two closures that extend along opposing short sides of the top panel sides and the bottom panel sides, and wherein the at least one gusset panel is two gusset panels (324) that extend between the short sides of the top panel and the bottom panel (see Fig. 11A and para. [0051]).
Regarding Claim 4, Holbrook discloses wherein the at least one closure is two closures that extend along opposing long sides of the top panel sides and the bottom panel sides, and wherein the at least one gusset panel is two gusset panels that extend between the long sides of the top panel and the bottom panel (see Fig. 11B and para. [0051]).
Regarding Claim 5, Holbrook discloses wherein the material of the top panel and the material of the bottom panel are the same material (see para. [0040].
Regarding Claim 9, Holbrook discloses wherein the gusset material is a breathable material (mesh, see para. [0054]).
Regarding Claim 10, Holbrook discloses wherein the gusset panel material is a mesh material (see para. [0054]).
Regarding Claim 11, Holbrook discloses wherein the at least one closure is a zipper (see para. [0042]).
Regarding Claim 12, Holbrook discloses wherein the fill is a compressible fill (see Figs. 1 and 3).
Regarding Claim 14, Holbrook discloses wherein the fill is a foam (see par. [0045]).
Regarding Claim 16, Holbrook as modified teaches a dual performance pillow (Holbrook: 10), comprising:
a top panel (Holbrook: 20) having a plurality of sides;
a bottom panel (Holbrook: 22) having a plurality of sides;
at least one gusset panel (Holbrook:24) extending between and connected to the top panel and the bottom panel at at least one respective top panel side and bottom panel side;
a closure (Holbrook: 18) at the at least one respective top panel side and bottom panel side to close and open the pillow at the at least one gusset panel; and
a fill (Holbrook: 14);
wherein the others of the plurality of top panel sides and bottom panel sides are joined to one another (Holbrook: see Figs 4-13B),
wherein the gusset panel is formed from a material having less resistance to air flow than a material of the top panel and a material of the bottom panel (Alletto: see Claim 1 rejection above), and
wherein when the at least one closure is closed and the at least one gusset panel is concealed, and when a force is applied to the pillow air flow out of the pillow is substantially prevented relative to when the at least one closure is open and the at least one gusset panel is exposed (inherent aspect of a more porous material being provided for the gusset and the closure being closed versus being opened) .
Regarding Claim 17, Holbrook discloses wherein the least one closure is one closure that fully surrounds the top panel sides and the bottom panel sides and extends about a periphery of the pillow, and wherein the at least one gusset panel is one gusset panel that extends about all of the sides of the top panel and the bottom panel (see para. [0014 and Figs. 13A and 13B).
Regarding Claim 18, Holbrook discloses wherein the at least one closure is two closures that extend along opposing sides of the top panel sides and the bottom panel sides, and wherein the at least one gusset panel is two gusset panels that extend between respective opposing sides of the top panel and the bottom panel (see Figs. 11A and 11B).
Regarding Claim 19, Holbrook discloses wherein the material of the top panel and the material of the bottom panel are the same material (see para. [0040]).
Regarding Claim 20, Holbrook discloses wherein the gusset panel material is a mesh material (see para. [0054]).
Regarding Claim 21, Holbrook discloses wherein the at least one closure is a zipper (see para. [0042]).
Regarding Claim 22, Holbrook discloses wherein the fill is a compressible fill (see Figs. 1 and 3).
Regarding Claim 24, Holbrook as modified teaches a dual performance pillow (Holbrook: 10), comprising:
a top panel (Holbrook: 20) having a plurality of sides;
a bottom panel (Holbrook: 22) having a plurality of sides;
at least one gusset panel (Holbrook: 24) extending between and connected to the top panel and the bottom panel at at least one respective top panel side and bottom panel side;
a selectively closable closure (Holbrook: 18) at the at least one respective top panel side and bottom panel side to close and open the pillow at the at least one gusset panel; and
a fill (Holbrook: 14);
wherein the others of the plurality of top panel sides and bottom panel sides are joined to one another (Holbrook: see Figs 4-13B),
wherein the gusset panel is configured to be selectively obstructed by the closure such that, when the closure is closed, the gusset panel is concealed and airflow into and out of the pillow through the gusset panel is substantially prevented, and when the closure is open the gusset panel is exposed and airflow into and out of the pillow is permitted (Alletto: see Claim 1 rejection above; inherent aspect of a more porous material being provided for the gusset and the closure being closed versus being opened).
Claim(s) 6-8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Holbrook (US 2018/0325291) in view of Alletto (US 8,646,134) as applied to claim 1 above, and further in view of Kummerfeld (US 2013/0145556).
Regarding Claim 6, Holbrook fails to disclose wherein the top and bottom panels are coated. Kummerfeld teaches wherein top and bottom panels (210) are coated (see para.[0092]). Holbrook and Kummerfeld are analogous art because they are from the same field of endeavor, i.e. pillows. It would have been obvious to one having ordinary skill in the art at the time the invention was filed to modify the top and bottom panels of Holbrook with the coating of Kummerfeld. The motivation would have been to provide a moisture protective covering, therefore protecting the fill material of Holbrook.
Regarding Claim 7, Kummerfeld teaches wherein the coating is a thermoplastic polyurethane coating (see para. [0092]).
Regarding Claim 8, Holbrook fails to disclose wherein the top and bottom panels are formed as a laminate. Kummerfeld teaches wherein top and bottom panels (210) are formed as a laminate (see para. [0092]). It would have been obvious to one having ordinary skill in the art at the time the invention was filed to modify the top and bottom panels of Holbrook with the laminate structure of Kummerfeld. The motivation would have been to provide a moisture protective covering, therefore protecting the fill material of Holbrook.
Claim(s) 13, 15 and 23 is/are rejected under 35 U.S.C. 103 as being unpatentable over Holbrook (US 2018/0325291) in view of Alletto (US 8,646,134) as applied to claim 1 above, and further in view of Official Notice.
Regarding Claims 13 and 23, Holbrook fails to disclose wherein the compressible fill is a polyester fill. Examiner takes Official Notice that polyester fill is well-known within the art of pillows. It would have been obvious to one having ordinary skill in the art at the time the invention was filed to modify Holbrook’s fill to be a polyester fill. 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.
Regarding Claim 15, Holbrook fails to disclose the foam is a shredded foam. Examiner takes Official Notice that shredded foam is well-known within the art of pillows. It would have been obvious to one having ordinary skill in the art at the time the invention was filed to modify Holbrook’s foam to be shredded foam. 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.
Response to Arguments
Applicant's arguments filed 01/29/2026 have been fully considered but they are not persuasive. The arguments are substantially the same as the arguments filed 09/08/2025.
Regarding Applicant’s argument that Alletto expressly requires the gusset to remain exposed to ambient airflow at all times to allow the pillow's cooling features to function and thus teaches away from Holbrook's approach of concealing the gusset within the pillow cover. Examiner respectfully disagrees. Examiner notes that the claims in question were rejected as being unpatentable over Holbrook in view of Alletto, and not vice versa. The porous material of Alletto’s gusset was used to modify Holbrook’s gusset as discussed in the rejections of the independent claims above. Explicit motivation to modify Holbrook’s gusset with a relatively porous material was provided in at least the rejection of Claim 1, i.e. “to provide for lateral ventilation between the top and bottom panel, thus permitting a cooling effect while a user is resting or sleeping (Alletto: see Col. 1, Lines 34-36).”
Applicant further argues that Alletto teaches away from an obstructed gusset — Examiner respectfully disagrees. Holbrook provides for the general structure of the claimed invention (see rejections above and drawings of Holbrook compared to drawings of instant application). Alletto teaches using a relatively porous material for the gusset with explicit motivation to do so. Examiner notes that the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
Regarding Applicant’s argument that the references as cited still fail to disclose the claimed feature that "the gusset panel has less resistance to airflow relative to the top and bottom panels." and even if Alletto's porous gusset were imported into Holbrook, there is no disclosure, suggestion, or motivation to ensure that Holbrook's top and bottom panels are of greater resistance to airflow than the gusset as now claimed. — Examiner respectfully disagrees. Examiner quotes the rejection of Claim 1 from above: “Alletto teaches wherein a gusset panel (20) is formed from a material having less resistance to air flow than a material of the top panel (16) and a material of the bottom panel (18, see claim 17 of Alletto). Holbrook and Alletto are analogous art because they are from the same field of endeavor, i.e. pillows. It would have been obvious to one having ordinary skill in the art at the time the invention was filed to modify the top panel, bottom panel, and gusset materials of Holbrook with the porosities of Alletto. The motivation would have been to provide for lateral ventilation between the top and bottom panel, thus permitting a cooling effect while a user is resting or sleeping (Alletto: see Col. 1, Lines 34-36).” The relevant excerpt from Claim 17 of Alletto reads as follows: “gusset being formed of an open cell construction and a base material, and said open cell construction is formed by porosity of said base material being substantially greater than porosity of material forming said first panel and substantially greater than porosity of material forming said second panel” (emphasis added). A greater porosity can reasonably be interpreted as less resistance to airflow and a lesser porosity can reasonably be interpreted as a greater resistance to airflow.
Conclusion
All claims are identical to or patentably indistinct from, or have unity of invention with claims in the application prior to the entry of the submission under 37 CFR 1.114 (that is, restriction (including a lack of unity of invention) would not be proper) and all claims could have been finally rejected on the grounds and art of record in the next Office action if they had been entered in the application prior to entry under 37 CFR 1.114. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action after the filing of a request for continued examination and the submission under 37 CFR 1.114. See MPEP § 706.07(b). 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.
/ERIC J KURILLA/Primary Examiner, Art Unit 3619