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 filed 1/16/26 have been fully considered. The amendments have overcome the prior claim objections and 112(b) rejections. Applicant’s art-related arguments are not persuasive for the reasons set forth below. Applicant argues that Liu does not meet the “separate and distinct members” recitation, arguing that “Liu… does not disclose two physically distinct support members or any spaced-apart structure establishing an open alignment between recesses, as presently claimed.” The arguments, however, are not commensurate with the scope of the claim. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Further, applicant’s arguments require a narrower interpretation than the broadest reasonable interpretation. The claims do not require, for example, “two physically distinct support members,” and do not require a “spaced-apart structure establishing an open alignment between recesses.” Those limitations are absent from the claim and present only in the arguments. Rather, the claim limitation at issue solely requires that “the upper and lower support members are separate and distinct members that are disposed in a spaced apart manner to define a head support alignment.” The upper support member is (104, 1041, 103, 104, 1042) and the lower support member is (102, 1021, 101, 102, 1022). Figure 1 plainly shows the claimed limitation. The upper and lower support members are separate. The upper and lower support members are distinct from each other. They are disposed in a spaced apart manner to define a head support alignment.
With regard to the dependent claims, applicant repeats the arguments as to claim 1 which are not persuasive for the reasons set forth above.
With regard to claim 2, applicant argues that the material at issue may be known, but that Liu does not disclose or suggest their use in distinct, spaced-apart support members configured for head and neck alignment. If Liu had disclosed that, then the rejection would have been a 102 instead of a 103. Regardless, applicant has not rebutted the modification in the rejection, nor asserted any deficiency with regard to the modification, instead only stating that Liu does not disclose the limitation, which was already acknowledged – hence, the modification.
With regard to claim 3, applicant’s argument is not commensurate with the scope of the claim. Applicant argues that Liu does not provide a teaching or suggestion “of any adjustability in the special relationship between head and neck recesses. Nor is there an obvious modification that would result in an adjustable alignment between structurally separated head and neck supports.” Those limitations are simply not present in the claim. The claim only requires that “the head support alignment is adjustable to accommodate users each having a different respective head size,” and is fully addressed in the rejection below.
Regarding claims 5 and 6, the rejection plainly points to the at least one planar surface. Please see the rejection for details. With regard to the modification and applicant’s assertion of hindsight reconstruction, please note that 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). The modification is proper and was not persuasively rebutted by applicant. See the rejection below for details. The rejection 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. Further, applicant has not pointed to any actual errors in the modification itself nor the rationale for the modification.
With regard to the official notice, no traversal was presented. Therefore, it is taken to be admitted prior art. See MPEP 2144.
Claim Rejections - 35 USC § 102
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.
(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.
Claim(s) 1 is/are rejected under 35 U.S.C. 102(a)(1) and/or (a)(2) as being anticipated by Liu (US PG Pub. No. 20210037996).
Re Claim 1
Liu discloses:
A face preservation sleeping pillow (10) comprising:
an upper support member (104, 1041, 103, 104, 1042) having a first recess (103) configured to receive and support a user's head (fig. 1); and
a lower support member (102, 1021, 101, 102, 1022) having a second recess (101) configured to receive and support the user's neck (fig. 1), the second recess is aligned with and shaped to correspond to the first recess of the upper support member (fig. 1),
wherein the upper and lower support members are separate and distinct members that are disposed in a spaced apart manner to define a head support alignment (fig. 1).
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) 2-3, 5-6 are is/are rejected under 35 U.S.C. 103 as being unpatentable over Liu (US PG Pub. No. 20210037996).
Re Claim 2
Liu discloses all claim limitations, see above, except:
wherein the upper and lower support members include one or more of memory foam and gel-infused foam.
It would have been obvious to one having ordinary skill in the art prior to the effective filing date to have the upper and lower support members include one or more of memory foam and gel-infused foam, 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 for the purpose of, for example, providing a resilient and comfortable material for a user.
Re Claim 3
Liu as modified above discloses all claim limitations, see above, including:
wherein the head support alignment is adjustable to accommodate users each having a different head size ([0049]; note that the head support alignment is capable of being adjusted to accommodate different sized user’s heads, i.e. by pressing or squishing the material and/or by adjusting the fill amount).
Re Claim 5
Liu as modified above discloses all claim limitations, see above, including:
wherein the upper and lower support members each include at least one planar surface (e.g. 1042, 1022).
Re Claim 6
Liu as modified above discloses all claim limitations, see above, except:
wherein the upper and lower support members each include a thickness of at least 2 inches.
Liu appears to be silent as to the actual dimensions of the apparatus. Nevertheless, it would have been obvious matter of design choice to have the upper and lower support members includes a thickness of at least 2 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). Such a modification would have been obvious for the purpose of accommodating the head and/or neck of a user and it is further noted that the claimed dimension is common within the pillow art.
Claim(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Liu (US PG Pub. No. 20210037996) in view of Official Notice (now taken to be admitted prior art).
Re Claim 4
Liu as modified above discloses all claim limitations, see above, except:
wherein the upper and lower support members are covered with a fabric material.
Examiner hereby takes official notice that it is old and well known in the art to utilize fabric covers with pillows for the purpose of providing a comfortable outer layer which can be cleaned and which protects the pillow. It would therefore have been obvious to one having ordinary skill in the art prior to the effective filing date to provide Liu as modified above with a fabric cover such that the upper and lower support members are covered with a fabric material for the articulated purpose; see above. It is noted that the above is now taken to be admitted prior art as no traversal was presented by applicant.
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