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 .
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) 18 and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Maloney et al. (US Patent Application Publication Number 2021/0237634) in view of Skrbis et al. (US Patent Number 11299079).
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.). Maloney does not disclose a tubular sound passageway. Skrbis discloses a related device including a cushioned component including a tubular sound passageway (46, 56, 60, etc.) that is integrally formed with a porous lattice matrix and extends between an upper opening (at 58 and/or 62 for instance) on an outer side of the cushioned component and an opening (at 47 for instance) on a lower portion of the cushioned component. 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 passageway as taught by Skrbis 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 based on the arrangement of the reference devices (i.e. with the upper opening on the forwardly-facing outer side), even if this were not clear, changes in shape and arrangement of components 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.
Regarding claim 20, Maloney, modified as described, discloses a seat as explained above including the porous lattice matrix includes at least one horizontally extending tubular portion (at least 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.
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. 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.). Maloney 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 based on the arrangement of the reference devices (i.e. with the upper opening on the forwardly-facing outer side and 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. It is additionally noted that 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 claimed in Maloney’s device base on Skrbis and/or normal variation because this could improve manufacture, packaging, and user comfort.
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 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12594866. 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.
Response to Arguments
Applicant's arguments filed 29 April 2026 have been fully considered but they are not persuasive. Specifically, Applicant appears to argue that the restriction requirement of the 2 February 2026 final rejection was improper and/or not fully explained, and that the combination of Maloney, Yang, and Skrbis would not result in the claimed arrangement.
Regarding the restriction requirement, Applicant is directed to the first paragraph of the “Election/Restriction” section of the 2 February final action, which explains that “the new claims… 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.” While it is appreciated that the original disclosure included different claims reciting a lattice, this does not show that these claims were all directed to the same embodiment. As is clear from the disclosure, the lattice of Group I is indicated at 10 and/or 14 and relates to details of cells, links, and tubes, while the lattice of Group II is indicated at 56 and includes a sound passageway. These are in fact mutually exclusive as disclosed because there is no showing of a lattice with cells/link/tube details and a sound passageway (note that the “tubes” mentioned in relation to Group II are of the sound passageway itself, not the lattice).
Regarding the combination of Maloney, Yang, and/or Skrbis, Applicant first argues that “an upper opening on the forwardly-facing outer side of the cushioned component” is absent and/or that Yang does not disclose an “upper” opening. This is simply not the case. The rejection points to Yang’s teaching of “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).” From the cited paragraphs of Yang, we have “[the] sound tunnel 100 may be disposed on the exhaust valve device 200, which is mounted to the exhaust tube M1 of the muffler M, and may extend in the direction from the muffler M to the occupant seat so that the exhaust sound introduced into the sound tunnel 100 is transferred to the occupant seat.” This provides at least an upper opening at the seat as virtually any vehicle in common use provides seats positioned vertically above mufflers. Thus the passageway at the seat would be higher than the “lower opening” for entering sound and accordingly be considered “upper.” The rejection goes on to explain that “the combination would appear to provide the components arranged as claimed” as including Yang’s sound passageway in Maloney’s seat would naturally provide an upper opening, which would necessarily be at a surface. Nevertheless, as one could conceivably imagine different arrangements, the rejection goes on to explain that changes in shape and arrangement of components require only routine skill in the art and it accordingly would have been obvious to provide the arrangement as claimed. It then goes on to cite Skrbis, who explicitly shows, inter alia, an upper opening on an outer side of a cushioned component, and to explain that it would have further been obvious to provide a tube arrangement as taught by Skrbis.
Applicant further argues that “routine skill” or “normal variation” would not be expected to result in the claimed limitation, but fails to explain how the limitation at issue would be in anyway unexpected. As thoroughly explained above, the cited art at the very least provides a fowardly-facing outer side of a cushioned component and a tubular sound passageway having an upper opening on an outer side of a cushioned component. Even if Applicant asserts that the simple combination of these features would not result in an upper opening on a forwardly-facing outer side of a cushioned component, certainly one of ordinary skill in the art would recognize that an upper opening on an outer side surface could be positioned on a forwardly-facing outer side surface (just as it could an upwardly- or downwardly- or rearwardly- or laterally-facing surface) and such positioning would routinely be considered based on a desire to improve “manufacture, packaging, and user comfort” along with myriad other design considerations.
Applicant then appears to argue that the citation of Yang and Skrbis is based on improper hindsight. In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). Moreover, the suggestion that the rejection connects an exhaust sound device to an air conditioning duct is incorrect. The references are cited for their tube arrangements generally, not a combined function.
Conclusion
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.
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/PHILIP F GABLER/ Primary Examiner, Art Unit 3636
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