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 .
Response to Arguments
Applicant's arguments filed 2/2/26 have been fully considered. The prior claim objection and 112(b) rejection have been overcome by amendment. Regarding each and every one of applicant’s remaining arguments, they have been fully considered, but they are not persuasive for the reason set forth below. Applicant takes issue with the official notice statement set forth in the prior action. However, applicant mischaracterizes the official notice statement. The action stated “Examiner hereby takes official notice that ILD is a known result-effective variable in the art, commonly known to relate to user comfort and support characteristics.” The rejection proceeds to then describe optimization of the variable from that point. Applicant does not directly address the optimization, rather applicant instead asserts that “it is not appropriate for examiner to take official notice without citing a prior art reference showing that it was well known to construct auxetic foam layers having the specific ILD characteristics currently claimed.” Respectfully, that is not what was done in the action and it is not what is required. The action did not assert that the specific values are old and well-known. Applicant is essentially stating that it is not appropriate to take official notice on this issue unless a reference can be pointed to which directly has the exact limitation of the specific ILD characteristics and values, ignoring the optimization and modification portion of the rejection. While it does not appear that applicant’s traversal is on point regarding the official notice statement which was made, supporting references for the official notice statement are nevertheless provided below. Applicant’s argument is not persuasive.
It is noted, with regard to the official notice statements in claims 6 and claim 9 from the prior action, that the statements are now taken to be admitted prior art because applicant failed to traverse the examiner’s assertion of official notice (see MPEP 2144 for details).
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.
Claims 1, 4, and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Alderson et al. (WO 2007052054 A1 and hereinafter “Alderson”) in view of Official Notice as supported by any of the following individually and/or in combination: Rasmussen (US PG Pub No. 20220167753), Martens (US PG Pub. No. 20210186228), Miller (US PG Pub No. 20190290016), Murphy et al. (US PG Pub No. 20180279795), Riley et al. US PG Pub No. 20140298588, Stowe (US PG Pub No. 20130174348), and Hobson (US PG Pub No. 20110047707).
Re Claim 1
Alderson discloses:
A mattress assembly (page 12), comprising:
at least one auxetic foam layer (page 12, “Auxetic foams in accordance with the present invention may be used as cushions and mattresses” etc.) having a negative Poisson’s ratio (“Auxetic materials, including foam, have a negative Poisson ratio whereby, when stretched in one direction by application of a tensile load, the material expands transversely to that direction. Alternatively, when compressed in one direction, the material contracts transversely to that direction.”).
Alderson discloses all claim limitations, see above, except:
wherein the at least one auxetic foam layer comprises an indention load deflection (ILD) at 25% deflection of 5 – 120 pounds force measured in accordance with ASTM D-3574 and/or ASTM D 3575; and
wherein the at least one auxetic foam layer further comprises an indention load deflection (ILD) at 65% deflection of 6.8 – 188 pounds force measured in accordance with ASTM D-3574 and/or ASTM D 3575.
Examiner hereby takes official notice that ILD is a known result-effective variable in the art, commonly known to relate to user comfort and support characteristics. Regarding the official notice statement, the following supporting references are provided:
Rasmussen US PG Pub No. 20220167753. See paragraphs 0019, 0034, 0035.
Martens US PG Pub No. 20210186228. See paragraphs 0028, 0030, 0047, 0050 and the material specification tables.
Miller US PG Pub No. 20190290016. See paragraph 0034.
Murphy et al. US PG Pub No. 20180279795. See paragraph 204.
Riley et al. US PG Pub No. 20140298588. See paragraph 0029.
Stowe US PG Pub No. 20130174348. See paragraph 0010.
Hobson US PG Pub No. 20110047707. See paragraph 0018.
Alderson discloses the use of various low density polyurethane foams (e.g. in the examples section), but does not disclose the particulars above. Nevertheless, it would have been obvious to one having ordinary skill in the art prior to the effective filing date to modify Alderson to include the claimed limitations above since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. Alternatively, it would have been obvious to one having ordinary skill in the art prior to the effective fling date to modify Alderson to include the claimed limitations above, since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 167 F.2d 272, 205 USPQ 215 (CCPA 1980). Examiner notes that ILD values are a result-effective variable which directly relate to comfort / support characteristics in a mattress; see similar experiments including density considerations in the art; see the official notice statement above; see the supporting references above. Such a modification as described above would have been obvious for the purpose of optimizing support / comfort for a user. Examiner notes that the breadth of the ranges as claimed indicates a lack of criticality to the values.
Re Claim 4
Alderson as modified above discloses all claim limitations, see above, except:
wherein the at least one auxetic foam layer further comprises a phase change material.
It would have been obvious to one having ordinary skill in the art at the time the invention was made to have the at least one auxetic foam layer further comprise a phase change material, 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 prior to the effective filing date for the purpose of slowing heating of the mattress surfaces so that the user remains cooler longer / facilitating cooling of the mattress layer / assembly, as is well-known in the art via use of phase change material(s).
Re Claim 8
Alderson as modified above discloses all claim limitations, see above, except:
wherein the at least one auxetic foam layer has a density from about 0.5 to about 8 pounds per cubic foot.
Alderson discloses the use of various low density polyurethane foams (e.g. in the examples section), but does not disclose the particulars above. The claimed particulars are commonly known to be values associated with low density polyurethane foams. Nevertheless, it would have been obvious to one having ordinary skill in the art prior to the effective filing date to modify Alderson to include the claimed limitation above since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. Alternatively, it would have been obvious to one having ordinary skill in the art prior to the effective fling date to modify Alderson to include the claimed limitation above, since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 167 F.2d 272, 205 USPQ 215 (CCPA 1980). Examiner notes that density values are a result-effective variable which directly relate to comfort / support characteristics in a mattress; see experiments including density considerations in the art. Such a modification as described above would have been obvious for the purpose of optimizing support / comfort for a user. Examiner notes that the breadth of the range indicates a lack of criticality to the values.
Claim(s) 2-3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Alderson et al. (WO 2007052054 A1 and hereinafter “Alderson”) in view of Official Notice as supported by any of the following individually and/or in combination: Rasmussen (US PG Pub No. 20220167753), Martens (US PG Pub. No. 20210186228), Miller (US PG Pub No. 20190290016), Murphy et al. (US PG Pub No. 20180279795), Riley et al. US PG Pub No. 20140298588, Stowe (US PG Pub No. 20130174348), and Hobson (US PG Pub No. 20110047707) and further in view of Sabalaskey (US Patent No. 5704085).
Re Claim 2
Alderson as modified above discloses all claim limitations, see above, except:
wherein the at least one auxetic foam layer is provided within a top panel layer, a quilt panel layer, an upholstery layer, an innercore, or combinations thereof.
Alderson discloses the use of auxetic foams in a mattress. Sabalaskey teaches the use of a foam layer (23) within the combination of a top panel layer (27), a quilt panel layer (25), an upholstery layer (14), and an innercore (12) for the purpose of comfortably supporting a user. It would have been obvious to one having ordinary skill in the art prior to the effective filing date to substitute the auxetic foam layer for the foam layer in Sabalaskey to gain the advantages of auxetic foam, thereby arriving at the claimed combination of limitations.
Re Claim 3
Alderson as modified above discloses all claim limitations, see above, except:
wherein the at least one auxetic foam layer is proximate to a sleeping surface of the mattress assembly spanning at least a portion of the length and/or width of the sleeping surface.
Alderson appears to be silent as to the location of the at least one auxetic foam layer in the mattress. Sabalaskey teaches the use of a foam layer (23) proximate to a sleeping surface of the mattress assembly spanning at least a portion of the length and/or width of the sleeping surface (fig. 2). It would have been obvious to one having ordinary skill in the art prior to the effective filing date to substitute the at least one auxetic foam layer for the foam layer in Sabalaskey to gain the advantages of auxetic foam, thereby arriving at the claimed combination of limitations.
Claim(s) 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Alderson et al. (WO 2007052054 A1 and hereinafter “Alderson”) in view of Official Notice as supported by any of the following individually and/or in combination: Rasmussen (US PG Pub No. 20220167753), Martens (US PG Pub. No. 20210186228), Miller (US PG Pub No. 20190290016), Murphy et al. (US PG Pub No. 20180279795), Riley et al. US PG Pub No. 20140298588, Stowe (US PG Pub No. 20130174348), and Hobson (US PG Pub No. 20110047707) and further in view of Azzopardi et al. (WO 2021209568 A1 and hereinafter “Azzopardi”).
Re Claim 5
Alderson as modified above discloses all claim limitations, see above, except:
wherein the negative Poisson’s ratio is in a range from -0.5 to -1.
Alderson does not explicitly disclose Poisson’s ratios in the claimed range. Azzopardi teaches negative Poisson’s ratios in the claimed range (claim 21 and elsewhere, e.g. “It will be understood that the Poisson’ s ratio may comprise a range of -3 to substantially 0, preferably in the range of -2 to substantially 0, more preferably in the range of -1 to substantially 0.”) and also teaches that the auxetic foam may be applied in mattresses (“Furthermore, the auxetic polyurethane foam substrate obtainable by the method according to the invention may be used as foam for bed mattresses (against bedsores), printer ink cartridge foam, foam for car manufacturing (e.g. saloon bolstering), for a filter, and for sound absorption.”). It would therefore have been obvious to one having ordinary skill in the art prior to the effective filing date to modify Alderson as modified above with the teachings of Azzopardi to arrive at the claimed limitation for the purpose of enhancing / optimizing the properties of the auxetic foam to best suit desired user comfort.
Claim(s) 6 and 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Alderson et al. (WO 2007052054 A1 and hereinafter “Alderson”) in view of Official Notice as supported by any of the following individually and/or in combination: Rasmussen (US PG Pub No. 20220167753), Martens (US PG Pub. No. 20210186228), Miller (US PG Pub No. 20190290016), Murphy et al. (US PG Pub No. 20180279795), Riley et al. US PG Pub No. 20140298588, Stowe (US PG Pub No. 20130174348), and Hobson (US PG Pub No. 20110047707) and further in view of Applicant Admitted Prior Art.
Re Claim 6
Alderson as modified above discloses all claim limitations, see above, except:
wherein the mattress assembly comprises multiple foam layers stackedly arranged on top of one another, wherein at least one of the multiple foam layers comprises the auxetic foam layer.
Examiner previously took official notice with regard to the following, now taken to be admitted prior art because applicant failed to traverse the examiner’s assertion of official notice (see MPEP 2144 for details) -- that it is old and well known in the art to utilize in a mattress assembly, multiple foam layers stackedly arranged on top of one another for the purpose of providing a comfortable and supportive mattress for a user. Alderson discloses the use of auxetic foam in mattresses, therefore it would have been obvious to have one of the layers comprise the auxetic foam layer. It would therefore have been obvious to one having ordinary skill in the art prior to the effective filing date to modify Alderson as modified above to include the claimed limitations (see above) for the articulated purpose.
Re Claim 9
Alderson as modified above discloses all claim limitations, see above, except:
further comprising one or more non-auxetic foam layers having a positive Poisson’s ratio.
Examiner previously took official notice with regard to the following, now taken to be admitted prior art because applicant failed to traverse the examiner’s assertion of official notice (see MPEP 2144 for details) -- that it is old and well-known in the mattress art to have one or more non-auxetic foam layers having a positive Poisson’s ratio for the purpose of providing a comfortable and supportive mattress for a user. It would therefore have been obvious to one having ordinary skill in the art prior to the effective filing date to modify Alderson as modified above to include the claimed limitations (see above) for the articulated purpose.
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.
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, 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