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 .
Claims 1-17, 19 and 21-30 are pending in the application. No newly added or canceled claims presented.
Claim Rejections - 35 USC § 103
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 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) 1-3, 13, 16, 17, 19, 21-26 and 30 is/are rejected under 35 U.S.C. 103 as being unpatentable over US Patent Publication US2009/0126107A1 hereinafter referred to as Kuo in view of US Patent Publication US2019/0365116A1 hereinafter referred to as Roma in view of US Patent 5,469,590 hereinafter referred to as Simon.
Re-Claim 1
Kuo discloses a cushioning system 1 fig.2 comprising: a plurality of cushioning members 30, 31 fig.2/ 3 fig.9 & 10 comprising an elastomeric material [0030 “The cushioning members 30, 31 may be made of the materials selected from such as the rubber materials, the plastic or gel materials, the foam materials, the elastic fiber materials, the polymer or polyurethane materials, or other natural or synthetic materials that include a suitable resilience, and may include different heights.”], wherein each cushioning member comprises a top end, bottom end, and a plurality of walls extending from the top end to the bottom end (see fig.2 & 6) and defining a plurality of cavities 32 fig.2.
However does not disclose the cushioning members wherein each cushioning member is substantially planar with a mating profile configured to engage and engaging with a complimentary mating profile of another one of the plurality of cushioning members, wherein each wall of the plurality of walls comprises a parting line between the top end and the bottom end, wherein the parting line comprises the maximum wall thickness, and wherein the wall thickness above and below the parting line is less that the maximum wall thickness.
Roma teaches a cushioning system 134 fig.5C comprising: a plurality of cushioning members 134 wherein each cushioning member comprises a top end and bottom end (see fig.6B), and wherein each cushioning member is substantially planar with a mating profile 142 fig.5C configured to engage and engaging with a complimentary mating profile of another one of the plurality of cushioning members 134a, 134b & 134c fig.5A [0061].
Accordingly, it would have been obvious to one of ordinary skill in the art before the invention was effectively filed to have combined the elastomeric mattress of Kuo and the interlocking mattress assembly of Roma and with a reasonable expectation of success arrived at elastomeric mattress with interlocking cushion members. One of ordinary skill in the art would have been motivated to make such a combination the purpose of having cushioning members with keyed profile comprises features that engage with corresponding features of an adjoining cushioning members to help secure the modular support sections in place as taught in Roma [0061].
Simon teaches a cushioning system 10 fig.1 comprising a plurality of walls 70 fig.5 wherein each wall of the plurality of walls comprises a parting line 70b fig.5 between the top end and the bottom end, wherein the parting line comprises the maximum wall thickness, and wherein the wall thickness above and below the parting line is less that the maximum wall thickness (see fig.5).
Regarding the above limitation, it would have been an obvious matter of design choice to select the profile shape of the plurality of walls to comprise a parting line wherein the wall thickness above and below the parting line is less than the maximum wall thickness at the parting line, because there is no invention in merely changing the shape or form of an article without changing its function except in a design patent. Eskimo Pie Corp. v. Levous et al., 3 USPQ 23 (CCPA 1956). Furthermore, it would have been an obvious matter of design choice to select the claimed shape, because applicant has not disclosed that having such a shape itself solves any stated problem, the claimed shape does not provide any unexpected result, and it appears that the invention would perform equally well the profile shape of the plurality of walls is of another shape, such as having a wall thickness above or below the parting line is not less than the maximum wall thickness at the parting line. Overall, applicant has not established any criticality of the claimed shape, and thus selecting the claimed shape would be an obvious matter of design choice.
Re-Claim 2
Kuo as modified by Roma and Simon above discloses,
wherein the mating profile comprises projections and recesses configured to interlock with projections and recesses of the second cushioning member to form a cushioning grid (see fig.5A and [0061]) Roma.
Re-Claim 3
Kuo as modified by Roma and Simon above discloses,
wherein at least one wall of the plurality of walls comprises a variable wall thickness between the top end and the bottom end (see fig.4 & 5 Simon).
Re-Claim 13
Kuo as modified by Roma and Simon above discloses,
wherein each cavity comprises a hexagonal shape, a rectangular shape, a bowtie shape, or an auxetic shape (see fig.2 Kuo).
Re-Claim 16
Kuo as modified by Roma and Simon above discloses,
Simon teaches wherein each wall comprises at least a first compression region 70a fig.5 and a second compression region 70c fig.5.
Re-Claim 17
Kuo as modified by Roma and Simon above discloses the claimed invention except for wherein a height of the first compression region between the top end and the bottom end is different from a height of the second compression region between the top end and the bottom end for at least one wall of the plurality of walls (see fig.5 Simon). It would have been obvious matter of design choice to vary the dimensions of so a height of the first compression region between the top end and the bottom end is different from a height of the second compression region between the top end and the bottom end for at least one wall of the plurality of walls [column 6 lines 37-41 “The portion 70b is provided at a point approximately equidistant between the upper and lower ends of the support member 70. The support member 70 may be composed of the foam materials described above, and its dimensions may be varied.”] Simon, since such a modification would have involved a mere change in the relative dimensions of a component. A change is relative dimension is generally recognized as being within the level of ordinary skill in the art. In re Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device.
Re-Claim 19
Kuo as modified by Roma and Simon above discloses,
a support base layer 126 fig.9A Roma/ 10 Kuo; at least one foam layer 104 fig.9A Roma; and a cushioning member system 134 fig.9A Roma/ 3, 30, 31 Kuo, the cushioning member system located between the support base layer and the at least one foam layer.
Re-Claim 21
Kuo as modified by Roma and Simon above discloses,
wherein each cavity comprises a hexagonal shape, a rectangular shape, a bowtie shape, or an auxetic shape (see fig.2 Kuo).
Re-Claim 22
Kuo as modified by Roma and Simon above discloses,
wherein each wall comprises at least a first compression region 70a Simon and a second compression region 70c Simon.
Re-Claim 23
Kuo as modified by Roma and Simon above discloses,
Simon teaches wherein at least one wall of the plurality of walls comprises a variable wall thickness (see fig.5) between the top end and the bottom end.
Re-Claim 24
Kuo as modified by Roma and Simon above discloses,
wherein the support base layer comprises foam [0059 “In the illustrated embodiment, the encasement 126 comprises a frame 128. The frame 128 may be made from foam.”] Roma.
Re-Claim 25
Kuo as modified by Roma and Simon above discloses,
wherein the support base layer further comprises a side rail 128 fig.4A Roma.
Re-Claim 26
Kuo as modified by Roma and Simon above discloses,
further comprising a coil layer 12 fig.2 Simon.
Re-Claim 30
Kuo as modified by Roma and Simon above discloses,
the mattress assembly comprising: a support base layer 126 Roma; at least one foam layer 104 Roma; and the cushioning system 134 Roma.
Claim(s) 4-5, 7-11, 14, 15 and 27-29 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kuo as modified by Roma and Simon above further in view of US Patent 5,749,111 hereinafter referred to as Pearce.
Re-Claim 4
Kuo as modified by Roma and Simon above discloses the claimed apparatus however does not discloses wherein each cushioning member is injection molded.
Pearce teaches a cushioning system 103 fir.2 wherein each cushioning member is injection molded [column 5 lines 51-55 “It an object of the invention to provide a cushion which is inexpensive to manufacture compared to prior art cushions. It is a feature of the invention that the invented cushion may be very quickly and cheaply injection molded or cast from suitable low cost gel materials.”].
Accordingly, it would have been obvious to one of ordinary skill in the art before the invention was effectively filed to have combined the elastomeric mattress of Kuo as modified by Roma and Simon and method of injection molding the elastomeric cushion of Pearce and with a reasonable expectation of success arrived at a elastomeric mattress wherein the cushioning member is injection molded. One of ordinary skill in the art would have been motivated to make such a combination the purpose of forming cushioning members very quickly and cheaply as taught in Pearce [column 5 lines 51-55].
Re-Claim 5
Kuo as modified by Roma, Simon and Pearce above discloses,
Pearce teaches wherein the cushioning member comprises an elastomeric material comprising a styrenic block copolymer and an oil [column 20 lines 13-21 “These formulations comprise about 100 parts by weight of a high viscosity triblock copolymer of the general configuration poly(styrene-ethylene-butylene-styrene) and from about 200 to about 1600 parts by weight of a plasticizing oil such as mineral oil. These formulations are very soft to the touch and very pliable to enable column buckling of even relatively thick columns, yet are so strong that they can stretch as much as sixteen times their original length without fracture.”].
Re-Claim 7
Kuo as modified by Roma, Simon and Pearce above discloses,
Pearce teaches wherein the oil comprises mineral oil [column 20 lines 13-21].
Re-Claim 8
Kuo as modified by Roma, Simon and Pearce above discloses,
Pearce teaches wherein the oil has a kinematic viscosity of about 10 cSt to about 110 cSt at 40 °C [column 21 lines 46-60 “Examples of such polybutenes include: L-14 (320M n), L-50 (420M n), L-100 (460M n), H-15 (560M n), H-25 (610M n), H-35 (660M n), H-50 (750M n), H-100 (920M n), H-300 (1290M n), L-14E (27-37 cst @ 100.degree. F. Viscosity), L-300E (635-690 cst @ 210.degree. F. Viscosity), Actipol E6 (365M n), E16 (973M n), E23 (1433M n) and the like. Examples of various commercially available oils include: ARCO Prime and Tufflo oils, other white mineral oils include: Bayol, Bernol, American, Blandol, Drakeol, Ervol, Gloria, Kaydol, Litetek, Marcol, Parol, Peneteck, Primol, Protol, Sonrex, and the like.”].
Re-Claim 9
Kuo as modified by Roma, Simon and Pearce above discloses,
Pearce teaches wherein a ratio of the styrenic block copolymer to the oil is from 20:80 to 40:60 [column 20 lines 13-21].
Re-Claim 10
Kuo as modified by Roma, Simon and Pearce above discloses,
Pearce teaches wherein the elastomeric material comprises a hardness from 10 Shore 00 to 80 Shore 00 [column 19 lines 45-51 “Any gelatinous elastomer or gelatinous viscoelastomer with a hardness on the Shore A scale of less than 15 may be considered a gel for the purposes of this invention, though a hardness of 3 or less on the Shore A scale is preferred, and a hardness which is off the Shore A scale and is characterized by a gram Bloom of less than about 800 is much preferred.”].
Re-Claim 11
Kuo as modified by Roma, Simon and Pearce above discloses,
Pearce teaches wherein the cushioning member further comprises polypropylene [column 21 lines 36-42 “Plasticizers particularly preferred for making the preferred gel are well known in the art, they include rubber processing oils such as paraffinic and naphthenic petroleum oils, highly refined aromatic-free paraffinic and naphthenic food and technical grade white petroleum mineral oils, and synthetic liquid oligomers of polybutene, polypropene, polyterpene, etc.”].
Re-Claim 14
Kuo as modified by Roma, Simon and Pearce above discloses,
Pearce teaches wherein a wall thickness of each wall of the plurality of walls is from 0.1 inches to 0.25 inches, inclusive [column 9 lines 58-62 “Examplary sizing and spacing of columns in the invention would include columns which have a cross sectional diameter taken orthogonal to the longitudinal axis of about 0.9 inches and a column wall thickness of about 0.1 inches at the thinnest point on a column wall.”].
Re-Claim 15
Kuo as modified by Roma, Simon and Pearce above discloses,
Pearce teaches wherein a distance from the top end to the bottom end is a wall height, and wherein the wall height is from 0.5 inches to 5 inches, inclusive [column 18 lines 26-30 “The cushion of this invention can be the preferred full 3.5 inches thick needed to allow sinking in for a human user which is in turn needed to equalize pressure and increase the surface area under pressure, while still being light weight.”].
Re-Claim 27
Kuo as modified by Roma, Simon and Pearce above discloses,
Pearce teaches wherein each cushioning member is injection molded [column 5 lines 53-55].
Re-Claim 28
Kuo as modified by Roma Simon and Pearce above discloses,
Pearce teaches wherein the elastomeric material comprising a styrenic block copolymer and an oil [column 20 lines 13-21].
Re-Claim 29
Kuo as modified by Roma, Simon and Pearce above discloses,
Pearce teaches wherein the elastomeric material comprises a hardness from 10 Shore 00 to 80 Shore 00 [column 19 lines 45-51] inclusive.
Claim(s) 5, 6, 11 and 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kuo as modified by Roma and Simon above further in view of UK Patent document GB2573857 hereinafter referred to as Ajit.
Re-Claim 3
Kuo as modified by Roma and Simon above discloses the claimed apparatus however does not discloses wherein the cushioning member comprises an elastomeric material comprising a styrenic block copolymer and an oil.
Ajit teaches a elastomeric cushioning member wherein the cushioning member comprises an elastomeric material comprising a styrenic block copolymer and an oil [see abstract “The ABA block copolymer is preferably selected from hydrogenated styrenic farnesene (HSFC), styrene-ethylene-ethylene/propylene-styrene (SEEPS) or styrene-ethylene-propylene-styrene (SEPS) or a mixture thereof. The non-ABA polymer is chosen from elastomeric polyolefins, polypropylene or mixtures thereof. Preferably the plasticizer is an oil. Antioxidants anti-aging agents or silicon dioxide may be included in the compositions. In a preferred embodiment the composition comprises, 1-5 wt% polypropylene, 5-15 wt% polyolefin elastomer, 1-30 wt% of HSFC, 5-15 wt% of SEPS, 1-20wt% of SEEPS and 55-80 wt% plasticizer oil. Also disclosed are gel compositions comprising hydrogenated styrenic farnesene (HSFC), at least one additional ABA block polymer and a plasticizer.”
It would have been obvious to one having ordinary skill in the art at the time the invention was filed to select the material of the elastomeric cushioning member to comprise a styrenic block copolymer and an oil as taught by Ajit, 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.
Re-Claim 6
Kuo as modified by Roma, Simon and Ajit above discloses,
Ajit teach wherein the styrenic block copolymer comprises as a Styrene-Ethylene-Ethylene / Propylene-Styrene (SEEPS) thermoplastic elastomer [see abstract].
Re-Claim 11
Kuo as modified by Roma, Simon and Ajit above discloses,
Ajit teach wherein the cushioning member further comprises polypropylene [see abstract].
Re-Claim 12
Kuo as modified by Roma, Simon and Ajit above discloses,
Ajit teach wherein the polypropylene is present in an amount up to about 10 wt.% [see abstract].
Response to Arguments
Applicant's arguments filed 05/22/2026 have been fully considered but they are not persuasive. Applicant argues that the prior art of Simon does not discloses the claim “wherein each wall of the plurality of walls comprises a parting line between the top end and the bottom end, wherein the parting line comprises the maximum wall thickness, and wherein the wall thickness above and below the parting line is less that the maximum wall thickness”. Applicant argues that the wall profile in Simon is made of foam and is profile is meant to serve a function different from Applicant’s. Applicant argues the parting line structure 70B of Simon is “only intended to act as a positioning stub to maintain or anchor the compressible support member 70 in position between adjacent rows of coil 34”. Applicant statement is true however it is Examiner determination this does not actually impact the combination. The focus of the combination is that is would it would have been an obvious matter of design choice to select the shape (profile) of the walls to be a different shape. While Simon teaches the use of cushion wall having a shape (profile) as claimed in the bedding art is already known. The facts still stands there is no invention in merely changing the shape or form of an article without changing its function except in a design patent. Eskimo Pie Corp. v. Levous et al., 3 USPQ 23 (CCPA 1956). Furthermore, it would have been an obvious matter of design choice to select the claimed shape, because applicant has not disclosed that having such a shape itself solves any stated problem, the claimed shape does not provide any unexpected result. Overall, applicant has not established any criticality of the claimed shape, and thus selecting the claimed shape would be an obvious matter of design choice. It is made clear the claimed shape does not offer any criticality being applicant discloses other wall shapes (profiles) can be utilized.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to IFEOLU A ADEBOYEJO whose telephone number is (571)270-3072. The examiner can normally be reached M-Th 10AM-5PM EST.
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/IFEOLU A ADEBOYEJO/Examiner, Art Unit 3679
/Matthew Troutman/Supervisory Patent Examiner, Art Unit 3679
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