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.
Response to Arguments
Applicant’s arguments regarding the 112(b) rejections and claim objection are persuasive in that the amendments have overcome the claim objection and 112(b) rejections as set forth in the prior action.
Applicant's arguments regarding the prior art / 103 rejection filed by applicant on 12/4/25 have been fully considered but they are not persuasive for the reasons set forth below. The amended claim language is broader than what applicant intends and has argued such that the prior art continues to read on the claims as set forth below. The claims are, therefore, not allowable. See the rejection below for details. In brief, the recitation of “to provide a continuous generally planar surface over the end portions of the slats of the bed frame” does not require that there is an uninterrupted flat extension between the foot and head end of the bed frame. As written, the alleged recesses between the slat end portions do not prevent the art from being applied to the claim. Each end portion has a continuous generally planar surface which is all that the claim requires.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
See claims 6-7 and 13-14 each of which recite “attachment means.” Attachment means is interpreted in view of paragraph 0020 and claim 14 of the original disclosure. Proper structural support exists for the recited means, which are taken to be attachment strips, screws, hook and loop fasteners, glue, tack, nails, and staples or equivalents thereof.
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, 8-13, and 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Elkhuizen et al. (US Patent No. 6305038 and hereinafter “Elkhuizen”).
Re Claim 1
Elkhuizen discloses:
A slat cover for covering end portions of slats of a bed frame, where the bed frame has a front end, a back end and a side rail including a slat support (see all figs; see below for details), the slat cover comprising:
a fabric material (14 and 13) sized to extend longitudinally at least a length of the bed frame (8; see fig. 2) from the front end to the back end of the bed frame (fig. 2) and to extend horizontally at least a width of the slat support of the side rail of the bed frame (side rail 6, slat support being one of the upper surface of 6, 7, or 11/12; see fig. 2); and
wherein the fabric material is configured to be secured on the bed frame to provide a continuous generally planar surface over the end portions of the slats of the bed frame (see fig. 2; note that each of the end portions has a continuous generally planar surface provided as claimed).
To the extent necessary, while 14 and 13 appear to be fabric and are described in the specification as being woven which would support a disclosure of fabric (see C3 L60 – C4 L3), the reference does not clearly state that the material is fabric. It would have been obvious to one having ordinary skill in the art at the time the invention was made to have the elements at issue be constructed of fabric, 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. Further, it is noted that the elements are already disclosed as woven, which at least implies (in conjunction with the drawing appearance, i.e. hatching) that the reference suggests a fabric material. Such a modification would have been obvious to one having ordinary skill in the art before the effective filing date for providing a washable material which is affordable, resilient, comfortable in use, and/or readily available and known in the beds art.
Re Claim 8
Elkhuizen discloses:
A bed assembly comprising:
a bed frame (8; fig. 2) which includes a plurality of slats (4) supported by slat supports of a left side rail and a right side rail (side rails 6, slat supports being one of the upper surface of 6, 7, or 11/12; see fig. 12);
a mattress supported on the plurality of slats (C1 L38 – C1 L58 and see also C1 L9 – C1 L 22); and
a pair of slat covers (14 and 13 on each side; see fig 2), each slat cover comprising a fabric material (see below) extending longitudinally at least a length of the bed frame from a front end to a back end of the bed frame and extending horizontally at least a width of one of the slat supports of the bed frame (see fig. 2);
wherein each slat cover is secured to the bed frame to provide a continuous generally planar surface over the end portions of the slats of the bed frame (at least via the weight of the mattress; see fig. 2; note that each of the end portions has a continuous generally planar surface provided as claimed).
To the extent necessary, while 14 and 13 appear to be fabric and are described in the specification as being woven which would support a disclosure of fabric (see C3 L60 – C4 L3), the reference does not clearly state that the material is fabric. It would have been obvious to one having ordinary skill in the art at the time the invention was made to have the elements at issue be constructed of fabric, 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. Further, it is noted that the elements are already disclosed as woven, which at least implies (in conjunction with the drawing appearance, i.e. hatching) that the reference suggests a fabric material. Such a modification would have been obvious to one having ordinary skill in the art before the effective filing date for providing a washable material which is affordable, resilient, comfortable in use, and/or readily available and known in the beds art.
Re Claims 2 and 9
Elkhuizen as modified above discloses all claim limitations, see above, except:
wherein the fabric material is nonwoven.
It would have been obvious to one having ordinary skill in the art at the time the invention was made to have the fabric material be nonwoven, 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. Such a modification would have been obvious to one having ordinary skill in the art before the effective filing date for providing a washable material which is affordable, resilient, comfortable in use, and/or readily available and known in the beds art.
Re Claims 3 and 10
Elkhuizen as modified above discloses all claim limitations, see above, except:
wherein the fabric material has a length between about 78 inches and about 85 inches long.
wherein the fabric material has a length between about 78 inches and about 85 inches long.
It would have been obvious matter of design choice to have the fabric material have a length between about 78 inches and about 85 inches long, since such a modification would have involved a mere change in the size of a component. A change is size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237, (CCPA 1955). It would have been obvious to one having ordinary skill in the art prior to the effective filing date to have the claimed sizing for the purpose of ensuring that the fabric material has an adequate length to fit the various standard size mattresses. Note that the length extends the full length of the frame as shown in fig. 2.
Re Claims 4 and 11
Elkhuizen as modified above discloses all claim limitations, see above, except:
wherein the fabric material has a width between about 2 inches and 6 inches.
wherein the fabric material has a width between about 2 inches and 6 inches.
It would have been obvious matter of design choice to have the fabric material have a width between about 2 inches and 6 inches, since such a modification would have involved a mere change in the size of a component. A change is size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237, (CCPA 1955). It would have been obvious to one having ordinary skill in the art prior to the effective filing date to have the claimed sizing for the purpose of ensuring that the slats can be removably placed within the pockets as shown in fig. 2 and also / alternatively to facilitate assembly. Note the relative sizing of the pocket compared to the slat suggests the claimed dimensions as well.
Re Claim 12
Elkhuizen as modified above discloses:
wherein the fabric material is secured by a weight of the mattress (C1 L38 – C1 L58 and see also C1 L9 – C1 L 22).
Re Claims 6 and 13
Elkhuizen as modified above discloses:
wherein the fabric material is secured by an attachment means (stitching, see C3 L 60 – C4 L 3).
wherein the fabric material is secured by an attachment means (stitching, see C3 L 60 – C4 L 3).
Re Claim 15
Elkhuizen as modified above discloses all claim limitations, see above, except:
wherein the width of each slat cover is at least a width of a gap between the mattress and each side rail of the bed assembly.
The mattress is not shown in the reference, but is described as noted above. However, as it is not shown, the limitation above is not explicitly met by the reference. Nevertheless, it would have been obvious matter of design choice to have the width of each slat cover be at least a width of a gap between the mattress and each side rail of the bed assembly, since such a modification would have involved a mere change in the size of a component. A change is size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237, (CCPA 1955). Such a modification would have been obvious to one having ordinary skill in the art prior to the effective filing date for the purpose of minimizing pinching, minimizing a dangerous zone for children / infants / the elderly, and/or for optimizing support.
Claim(s) 7 and 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Elkhuizen et al. (US Patent No. 6305038 and hereinafter “Elkhuizen”) in view of Official Notice.
Re Claims 7 and 14
Elkhuizen as modified above discloses all claim limitations, see above, except:
wherein the attachment means includes at least one of the group consisting of a screw, hook and loop fastener, glue, tack, nail and staple.
It would have been obvious to one having ordinary skill in the art prior to the effective filing date to have the attachment means includes at least one of the group consisting of a screw, hook and loop fastener, glue, tack, nail and staple since the examiner takes Official Notice of the equivalence of stitching and the above options for their use in the beds art and the selection of any of these known equivalents to secure various elements would be within the level of ordinary skill in the art.
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