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
Newly submitted claims 21-37 are directed to an invention and/or species that is independent or distinct from the invention originally claimed for the following reasons: the new claims (see in particular claim 21 and 30, from which all of the other new claims depend) are drawn to cells, links, and tubes of the lattice matrix that are present only in non-elected inventions/embodiments. That is, the tubular portions are distinct from the cells and related to a non-elected subcombination, while the details of the cells, links, etc. are specific to the cushion and/or lattice matrix (reference numbers 10, 14) present only in the non-elected embodiment of Group I.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claims 21-37 are withdrawn from consideration as being directed to a non-elected invention and/or species. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
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 (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.
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.
Claim(s) 18 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Maloney et al. (US Patent Application Publication Number 2021/0237634).
Regarding claim 18, Maloney discloses a seat for supporting a user in an upright seated position in a vehicle, the seat comprising: a frame having a lower portion and an upright back portion (at least inherent/internal even if not clearly shown; see paragraph 19); and an upright cushioned component (30) supported by the upright back portion of the frame, the cushioned component having a forwardly-facing outer side that is configured to support a user in an upright seated position (see figures), and including a porous lattice matrix formed by an additive process (see paragraph 4, 21, 26, 28 etc.).
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) 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Maloney in view of Yang (US Patent Application Publication Number 2020/0116057) and optionally Skrbis et al. (US Patent Number 11299079). Maloney discloses a seat as explained above but does not disclose sound equipment. Yang discloses a related device including a source of sound comprising at least one of an induction of an internal combustion engine or an exhaust system of an internal combustion engine (at least the exhaust system is discussed throughout); and at least one tubular sound passageway (100 for instance) having an opening at a vehicle seat (see at least paragraphs 23 and 24) whereby sound entering from the source of sound enters a lower opening (at 120), and the sound is transmitted through the tubular sound passageway and exits at an upper opening at the seat (this would be the general arrangement; see citations above). Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to provide a sound arrangement as taught by Yang in Maloney’s device because this could improve user experience and comfort. Note that while the combination would appear to provide the components arranged as claimed (i.e. with portions of the tube in the matrix and a polymer matrix), even if this were not clear, changes in shape and arrangement of components as well as material selection require only routine skill in the art and it accordingly would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to provide the arrangement as claimed based on normal variation to improve manufacture, packaging, and user comfort. Additionally, such arrangements are known as shown by Skrbis who discloses a related device including a cushioned component including at least one tubular sound passageway (46, 56, 60, etc.) that is integrally formed with a porous lattice matrix, the at least one tubular sound passageway having an upper opening (at 58 and/or 62 for instance) on an outer side of the cushioned component, a lower opening (at 47 for instance) on a lower portion of the cushioned component, and a central portion (of 46 and/or 56) extending through the porous lattice matrix between the upper and lower openings, whereby sound entering the lower opening is transmitted through the tubular sound passageway and exits at the upper opening (the device would function in this manner); and the tubular sound passageway and the porous lattice matrix comprise a homogenous one-piece polymer structure (they are viewed as such at least in that they are a homogenous unit apparently made of polymer; see the description of an elastic, resilient material as well as disclosure of the use of polymer more generally elsewhere). Accordingly, if the combination as described did not clearly provide the arrangement as claimed, it would have further been obvious to one of ordinary skill in the art before the effective filing date of the invention to provide a tube arrangement as taught by Skrbis in Maloney’s device as previously modified because this could improve manufacture, packaging, and user comfort.
Claim(s) 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Maloney. Maloney discloses a seat as explained above including the porous lattice matrix includes at least one horizontally extending tubular portion (at 168), but may not clearly disclose a plurality of tubes in a single matrix. Duplication and rearrangement of components requires only routine skill in the art however, and it accordingly would have been obvious to one of ordinary skill in the art to provide a plurality of tubes as claimed based on normal variation to improve performance and comfort for various users.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 18-20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of copending Application No. 18/541404 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because it would have been obvious to provide the elements arranged as claimed.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
Applicant’s arguments with respect to claim(s) have been considered but are moot in view of the new grounds of rejection necessitated by Applicant’s amendment.
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 PHILIP F GABLER whose telephone number is (571)272-2155. The examiner can normally be reached Mon-Fri 8:00 - 4:30.
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, David Dunn can be reached at 571-272-6670. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PHILIP F GABLER/Primary Examiner, Art Unit 3636
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