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 .
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.
Claim Status
Claims 2-3 and 5 have been canceled.
Claims 1, 4, and 7 are amended.
Claims 1, 4, and 6-7 are fully examined below. Claims 8-11 remain withdrawn.
Response to Arguments
As an initial matter, the official notice statement from the prior action is now taken to be admitted prior art because applicant did traverse and/or did not adequately traverse the official notice statement. See MPEP 2144 for details. In the remarks, applicant did not state why the noticed fact is not considered to be common knowledge or well-known in the art.
Applicant's arguments filed 9/25/25 have been fully considered but they are not persuasive for the reasons set forth below. Cushing plainly disclosed spaced apart first and second support portions as noted in the rejection below. In response to applicant's argument that Cushing provides for an overlapping type connection / a connection which at least meets if not fully overlaps, 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). Here, the combined teachings of Cushing and the Official Notice statement clearly state that the limitations at issue would have been readily known / suggested to those of ordinary skill in the art prior to the effective filing date. The remainder of the arguments appear to be similarly directed toward bodily incorporation of the limitations; nevertheless, see below. While applicant argues that the use of ties in the circumstances at issue is merely speculative, applicant’s own statement undercuts that argument. Applicant argues that ties are typically used for spaced apart pieces being connected and not for edges which are already abutting or overlapping. Applicant’s statement admits that the ties are used at least in some circumstances for abutting or overlapping edges by virtue of the language “typically used.” Examiner maintains that the rejection is proper and that the modification would have been obvious for all of the reasons indicated above, below, and in the prior action. Regarding the official notice statement, while not viewed as mandatory in light of the arguments presented, see additional supporting evidentiary US Patents: 0881851 and/or 0856746. Each of the above include cords / ties as fasteners and are depicted as spaced apart.
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) 1, 4, 6, and 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Cushing (US Patent No. 6804844) in view of Official Notice. Regarding the official notice statement, to the extent necessary, see additional supporting evidentiary US Patents: 0881851 and/or 0856746.
Re Claim 1
Cushing discloses:
A mattress covering assembly comprising:
a mattress (12) having a first support surface (top surface; fig 1) and a second support surface (bottom surface) positioned opposite each other (fig. 1), each of the first support surface and the second support surface extending between a pair of ends of the mattress (fig. 1, the ends of the mattress), the mattress having a pair of side surfaces (fig. 1, the side surfaces of the mattress), each side surface extending between the first and second support surfaces and between the pair of ends (fig. 1, in the same manner as applicant’s mattress); and
a sleeve (10) positionable in a use position wherein the sleeve surrounds the mattress (figs. 1-2; note that the claim, however, merely requires the capability to be so positioned; note that in fig.1, the mattress clearly slides inside and is encased by 10 and its associated structure when in the use position, which the spec describes in additional detail), the sleeve comprising an end panel (24) and a perimeter panel (e.g. in combination, 18, 20, 14, 16), the perimeter panel being coupled to and extending away from the end panel (figs. 1-3), the end panel and the perimeter panel defining a cavity in the sleeve (figs. 1-3; 35), a distal edge of the perimeter panel with respect to the end panel defining an opening to the cavity (figs. 1-3), the perimeter panel having a first support portion (14) and a second support portion (16) spaced apart and positioned opposite each other across the cavity (figs. 1-3), the sleeve containing the mattress in the cavity when positioned in the use position (figs. 1-3), the first support portion of the perimeter panel lying against the first support surface of the mattress when the sleeve is positioned in the use position (fig. 1), the second support portion of the perimeter panel lying against the second support surface of the mattress when the sleeve is positioned in the use position (fig. 1); and
a fastener configured to secure the sleeve to the mattress in the use position (e.g. 44 and/or 46; figs. 1-3), the fastener being positioned at the distal edge of the perimeter panel (figs. 1-3).
Cushing does not explicitly disclose:
wherein the fastener comprises a first cord positioned on the first support portion of the perimeter panel and a second cord positioned on the second support portion of the perimeter panel, the first cord being joinable via tying to the second cord.
The fasteners disclosed in Cushing are positioned on the support portions of the perimeter panels as claimed (see figs. 1-3). Cushing discloses the fasteners (see above), but does not explicitly identify them as cords joinable via tying as claimed.
Cushing teaches the use of other fasteners with some non-limiting examples (C2 L41 – 56, specifically “Although snap tape strips 44, 46 are shown as one form of fastener, it will be appreciated that other fasteners may be used including hook and loop fasteners, a Velcro strip, buttons/button openings, and/or zippers.”) Examiner hereby takes official notice (now admitted prior art, see above) that cords joinable via tying are another old and well-known type of fastener in the beds art and would be readily substituted as suggested by Cushing for the snap tape strips for the purpose of providing another predictable, low cost, easy to use fastener to suit a user’s preference and/or a design consideration. It would therefore have been obvious to one having ordinary skill in the art prior to the effective filing date to substitute the snap tape strips for the claimed fasteners for the articulated purpose as described above. Regarding the official notice statement, while not viewed as mandatory in light of the arguments presented, see additional supporting evidentiary US Patents: 0881851 and/or 0856746. Each of the above include cords / ties as fasteners and are depicted as spaced apart.
Re Claim 4
Cushing discloses:
wherein the end panel lies against one end of the pair of ends of the mattress when the sleeve is positioned in the use position, the fastener extending over another end of the pair of ends of the mattress opposite the one end when the fastener secures the sleeve to the mattress in the use position (see figs. 1-3; note that in fig.1, the mattress clearly slides inside and is encased by 10 and its associated structure when in the use position, which the spec describes in additional detail; see C1 L28-44).
Re Claim 6
Cushing discloses:
wherein the sleeve comprises a fabric material (C2 L3-8).
Re Claim 7
Cushing discloses:
A mattress covering assembly comprising:
a mattress (12) having a first support surface (top surface; fig. 1) and a second support surface (bottom surface) positioned opposite each other (fig. 1), each of the first support surface and the second support surface extending between a pair of ends of the mattress (fig. 1, the ends of the mattress), the mattress having a pair of side surfaces (fig. 1, the side surfaces of the mattress), each side surface extending between the first and second support surfaces and between the pair of ends (fig. 1, in the same manner as applicant’s mattress);
a sleeve (10) positionable in a use position wherein the sleeve surrounds the mattress (figs. 1-2; note that the claim, however, merely requires the capability to be so positioned; note that in fig.1, the mattress clearly slides inside and is encased by 10 and its associated structure when in the use position, which the spec describes in additional detail), the sleeve comprising an end panel (24) and a perimeter panel (e.g. in combination, 18, 20, 14, 16), the perimeter panel being coupled to and extending away from the end panel (figs. 1-3), the end panel and the perimeter panel defining a cavity in the sleeve (figs. 1-3; 35), a distal edge of the perimeter panel with respect to the end panel defining an opening to the cavity (figs. 1-3), the perimeter panel having a first support portion (14) and a second support portion (16) positioned spaced apart and opposite each other across the cavity (figs. 1-3), the sleeve containing the mattress in the cavity when positioned in the use position (figs. 1-3), the first support portion of the perimeter panel lying against the first support surface of the mattress when the sleeve is positioned in the use position (fig. 1), the second support portion of the perimeter panel lying against the second support surface of the mattress when the sleeve is positioned in the use position (fig. 1), the end panel lying against one end of the pair of ends of the mattress when the sleeve is positioned in the use position (figs. 1-3; note that in fig.1, the mattress clearly slides inside and is encased by 10 and its associated structure when in the use position, which the spec describes in additional detail; see C1 L28-44), the sleeve comprising a fabric material (C2 L3-8); and
a fastener (e.g. 44 and/or 46; fig. 1a) configured to secure the sleeve to the mattress in the use position (figs. 1-3), the fastener being positioned at the distal edge of the perimeter panel (figs. 1-3).
Cushing does not explicitly disclose:
the fastener comprising a pair of first cords positioned on the first support portion of the perimeter panel and a pair of second cords positioned on the second support portion of the perimeter panel, each first cord of the pair of first cords being joinable via tying to an associated second cord of the pair of second cords over another end of the pair of ends of the mattress opposite the one end of the pair of ends.
The fasteners disclosed in Cushing are positioned on the support portions of the perimeter panels as claimed (see figs. 1-3). Cushing discloses the fasteners (see above), but does not explicitly identify them as cords joinable via tying.
Cushing teaches the use of other fasteners with some non-limiting examples (C2 L41 – 56, specifically “Although snap tape strips 44, 46 are shown as one form of fastener, it will be appreciated that other fasteners may be used including hook and loop fasteners, a Velcro strip, buttons/button openings, and/or zippers.”) Examiner hereby takes official notice (now admitted prior art, see above) that cords joinable via tying are another old and well-known type of fastener in the beds art and would be readily substituted as suggested by Cushing for the snap tape strips for the purpose of providing another predictable, low cost, easy to use fastener to suit a user’s preference and/or a design consideration. It would therefore have been obvious to one having ordinary skill in the art prior to the effective filing date to substitute the snap tape strips for the claimed fasteners for the articulated purpose as described above. Regarding the official notice statement, while not viewed as mandatory in light of the arguments presented, see additional supporting evidentiary US Patents: 0881851 and/or 0856746. Each of the above include cords / ties as fasteners and are depicted as spaced apart.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 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.
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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