DETAILED ACTION
This office action is in response to the application filed on 12/1/2023 and 12/31/2025. Claims 1-6 are pending. Claims 1-6 are rejected.
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 .
Restrictions and Effective Filing Date
Pursuant to the phone interview of 2/12/2026, Applicant has clarified the response to the election of species requirement; see attached interview summary form PTO-413. Applicant’s election, with traverse, of Species XVIII, air pressure and a flow of cooling or heating fluid through an area directly under a sleeping person, as represented by Figures 127-130 is hereby acknowledged. Applicant’s specification discusses this embodiment in at least paragraphs [0748]-[0777].
Claims 7-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species, there being no allowable generic or linking claim.
A complete reply to a final rejection must include cancellation of nonelected claims or other appropriate action (37 CFR 1.144) See MPEP § 821.01. Applicant is reminded that upon the cancellation of claims to a non-elected invention, the inventorship must be corrected in compliance with 37 CFR 1.48(a) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. A request to correct inventorship under 37 CFR 1.48(a) must be accompanied by an application data sheet in accordance with 37 CFR 1.76 that identifies each inventor by his or her legal name and by the processing fee required under 37 CFR 1.17(i).
Applicant argues in remarks dated 12/31/25 that the requirement for election of species is improper because the restriction is not directed toward a specific claimed invention. However, the requirement is based upon species disclosed, not on two distinct inventions being claimed. See MPEP §808.01(a), which states in part “Where there is no disclosure of a relationship between species (see MPEP § 806.04(b)), they are independent inventions.” Also see MPEP §809.02. However, the requirement is based on multiple patentably distinct species being disclosed in the application, which would cause a serious search burden at least because the species or groupings of patentably indistinct species have acquired a separate status in the art in view of their different classification, and the species or groupings of patentably indistinct species require a different field of search (e.g., searching different classes/subclasses or electronic resources, or employing different search strategies or search queries). For example, Species I, directed toward changes in temperature as a function of blood pressure, has a completely structural configuration and a different mode of operation than does a “roll-down partition that creates acoustic zones in a bed” as in species XVI. Additionally, species V, disclosed in Fig. 16 (and others), is directed toward “a respiratory mask” (as discussed in paragraph [0314], and is a completely different structural configuration and directed toward a different purpose than elected species XVIII which is directed toward air and liquid flow tubes to head or cool a bed. Therefore, Applicant’s arguments are not found to be persuasive and the election of species requirement is made final. If Applicant would like to provide arguments that certain species are obvious variants which are not patentably distinct, and should therefore be included in the scope of the current application, Applicant is invited to provide such arguments in the written record and/or to contact the Examiner by phone.
Claim Rejections - 35 USC § 102
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 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 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; or
(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.
Claims 1-4 and 6 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US Patent 5,989,285 to DeVilbiss et al. (“DeVilbiss”).
Claim 1. A sleep-enhancing device comprising: a bedding component (DeVilbiss, Fig. 9) configured to be under or over a person in bed (DeVilbiss, Fig. 9, user is located within central portion #142); a plurality of air-flow tubes (DeVilbiss, Fig. 9, #’s 186) or channels through the bedding component, wherein air-flow tubes or channels in the plurality of air-flow tubes or channels conduct a flow of cooled or heated air (DeVilbiss, column 5, lines 1-17 discusses air being located in air flow tubes between sheets #20 and 28), and wherein there are openings in the air-flow tubes (DeVilbiss, Fig. 9, #’s 194) or channels through which air flows flow out of the air-flow tubes toward the person; and a plurality of liquid-flow tubes (DeVilbiss, column 4, lines 53-67 discusses liquid being located in liquid flow tubes between sheets #12 and #20) or channels through the bedding component, wherein liquid-flow tubes or channels in the plurality of liquid-flow tubes or channels conduct a flow of cooled or heated liquid, and wherein the liquid-flow tubes or channels cool or heat air in the air-flow tubes or channels (regarding heating or cooling the air with the liquid, see DeVilbiss column 1, lines 58-67).
Claim 2. The device in claim 1 wherein the bedding component is a mattress, mattress pad, mattress topper, blanket, bedspread, comforter, or quilt (the apparatus of DeVilbiss is disclosed to be a “blanket”).
Claim 3. The device in claim 2 wherein the bedding component is a comforter with holes which emit air so that the comforter is a holy comforter (the apparatus of DeVilbiss is disclosed to be a “blanket”, which reads on Applicant’s claimed “comforter”; additionally the apparatus of DeVilbiss discloses apertures #’s 194).
Claim 4. The device in claim 1 wherein the liquid-flow tubes or channels are inside the air-flow tubes or channels (DeVilbiss Fig. 9, liquid flow tubes #178 are located within air flow tubes #186).
Claim 6. The device in claim 1 wherein the liquid-flow tubes or channels are nested within the air-flow tubes or channels (DeVilbiss Fig. 9, liquid flow tubes #178 are “nested within” air flow tubes #186).
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 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 of this title, 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 5 is rejected under 35 U.S.C. 103 as being unpatentable over US Patent 5,989,285 to DeVilbiss et al. (“DeVilbiss”) in view of US Patent 7,455,686 to Gluderer.
Claim 5. The device in claim 1 wherein the liquid-flow tubes or channels are centrally located within the air-flow tubes or channels (DeVilbiss Fig. 9, liquid flow tubes #178 are located within air flow tubes #186, however they are not “centrally located”; however Gluderer teaches a similar apparatus with tubes that are concentric, or co-linear, as seen in Figs. 3C and 3D, and are located within a mattress at #7 in Fig. 2; it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to provide the combined air and water flow tubes of Gluderer since doing so would have simply been combining prior art elements according to known methods to yield predictable and obvious results, and additionally would have provided the ability to allow gas or liquid that permeates radially around an entire 360 degrees as opposed to only on one side (180 degrees) as in the case of the apparatus of DeVilbiss Fig. 9).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MYLES A THROOP whose telephone number is (571)270-5006. The examiner can normally be reached 8:00 am to 5:00 pm.
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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/MYLES A THROOP/Primary Examiner, Art Unit 3679