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
Examiner notes that the prior drawing objection was overcome by amendment. A new drawing objection is presented as necessitated by amendment. See below for details.
See below regarding 112(b) rejection(s) necessitated by amendment.
Applicant's arguments filed 2/17/26 have been fully considered but they are not persuasive. Regarding the 102 rejection, applicant argues that Smith does not have the stretchable limitation and flap sized to receive etc. limitation beginning on page 9 of the remarks. Applicant is incorrect. The reference discloses material that stretches, which necessarily results in the claimed at least one of (i) a dimension of an opening and (ii) a size and shape of the interior portion to receive the second end of the core. Further, the corner portions are plainly shown as being received in the figures. Further, the flap receives all of the corners as the corners are inserted into the and through the opening.
Regarding the 103 rejections, applicant appears to argue that the requirements of the independent claim are not met and that the dependent claim rejections of claims 12-14 do not cure the deficiencies in the rejection of the independent claim. Applicant is incorrect. There are not deficiencies in the independent claim rejection. See the response above and see the rejection below for details. Applicant argues that the design choice rationale is inapposite where the modification changes the principle of operation by enabling dynamic resizing of the opening/interior and a flap that receives the opposite end, yielding the distinct functional result that the core is not externally visible in the closed state. Respectfully, the argument is not understood. There is no change to the principle of operation whatsoever. The modifications merely have the encasement composed of a fire-retardant fabric and have certain dimensions met (see below for details). The invention operates in the same manner according to the same principle with or without the modification – there is no change to the principle of operation. Applicant seems to be stating, again, that the rejection of claims 12-14 fail to address the amendments to claim 1 (“(no teaching or rationale addressing the new claim 1 limitations)”), but that is not what the claims are for, nor is it the purpose of the rejection of the dependent claims to address claim 1. Claim 1, as amended, is fully addressed below. The rejections are maintained.
Each and every one of applicant’s alleged differences are fully addressed in the rejection below. See the rejection below for details.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the following limitation “wherein the encasement is configured to stretch in at least one direction and, when stretched, increases at least one of (i) a dimension of an opening and (ii) a size and shape of the interior portion to receive the second end of the core” must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claim 1 is objected to because of the following informalities: punctuation is missing after the third to last wherein clause. Appropriate correction is required.
Claims 13-14 are is objected to because of the following informalities: the claims are indicated as currently amended with amendments to the ranges, but the amendments are not actually amendments. No change has been presented from the prior claim set. The status identifier and indicate amendments are therefore incorrect. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-2 and 4-14 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites “a core;” followed by a number of structural elements and relative positioning in lines 3-13 of the claim. However, as written, there is no indication that the recitations in lines 3-13 are part of the core. It is unclear whether they relate to the core or whether they are separate elements of the overall mattress. The encasement limitations, in contrast, are recited as follows: “an encasement, wherein the encasement includes…” No such clause is present regarding the recitation of “a core.” Due to the ambiguity / lack of clarity, the claim is therefore indefinite.
The claims rejected below are rejected as best understood.
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) 1-2 and 4-11 is/are rejected under 35 U.S.C. 102(a)(1) and/or (a)(2) as being anticipated by Smith (US Patent No. 3605143).
Re Claim 1
Smith discloses:
A mattress (see all figs.), comprising:
a core (M);
a first side (e.g. left-hand side),
a second side opposite the first side (e.g. right-hand side),
a first end (e.g. end near the opening),
a second end opposite the first end (e.g. end near the closed end E), the first end and the second end extending between the first side and the second side,
an upper portion (e.g. at or near the upper surface in fig. 2),
a lower portion opposite the upper portion (e.g. the portion / surface opposite the upper portion; see fig. 2 again),
a first corner edge extending from the upper surface to the lower surface at an intersection of the first end and the first side (see all figs),
a second corner edge extending from the upper surface to the lower surface at an intersection of the first end and the second side (see all figs); and
an encasement (C),
wherein the encasement includes;
a first end (end opposite E near the opening; see the location at reference numeral 11 for example in fig. 2),
a second end opposite the first end (E),
a first side (e.g. the left-hand side),
a second side opposite the first side (e.g. the right-hand side),
an upper portion (10),
a lower portion opposite the upper portion (11),
an interior portion (the interior as shown in, for example, figs. 2-3 and 5),
an opening at the first end and in communication with the interior portion (e.g. at and near reference numeral 11 in fig. 2 – the opening is the point where the flap(s) begin to fold from the top and bottom panels and where the mattress is inserted, extending from the fold point until the end of the mattress and/or encasement), and
a flap (15) at the first end (figs. 2-3, 5),
wherein the encasement is configured to stretch in at least one direction and, when stretched, increases at least one of (i) a dimension of an opening and (ii) a size and shape of the interior portion to receive the second end of the core (C2 L23-40 and C2 L52 - C3 L32),
wherein the second end of the core is received within the interior portion and through the opening when the flap is in an open position (see all figs.),
wherein the flap is moveable from an open position, in which the flap is not covering the first end of the core (folded outside the opening, e.g. see fig. 2), and a closed position, in which the flap covers a first corner edge of the core, a second corner edge of the core, and the first end of the core (see all figs)
wherein the flap is sized to receive the first corner of the portion of the core, the second corner of the portion of the core, and the first end of the core (figs. 1-6); and
wherein, when the flap is in its closed position, the core is not visible external of the mattress (see all figs; See C1 L50 – C2 L4).
Re Claim 2
Smith discloses:
wherein when the flap is in its closed position, the flap covers the first end of the core (see figs. 3-5), at least a portion of the upper surface of the core (see figs. 3-5), and at least a portion of the lower surface of the core (see figs. 3-5).
Re Claim 4
Smith discloses:
wherein the flap includes a first end (proximate the first end of the encasement; see above), a second end opposite the first end of the flap (the end of the flap as shown in, for example, fig. 3, which folds up and over and terminates near the lead line for M), a first side (e.g. left-hand side), a second side opposite the first side of the flap (e.g. right-hand side), a first surface (see figs. 2-5; the first surface may be the outer surface of 15 extending from the bottom around to the top in the fig. 3 perspective and see also fig. 5) extending from the first end of the flap to the second end of the flap and from the first side of the flap to the second side of the flap (see figs. 2-5), and a second surface (corresponding interior surface) opposite the first surface of the flap (see figs. 2-5), wherein the first surface of the flap covers the first end of the core when the flap is in its closed position (see figs. 2-4).
Re Claim 5
Smith discloses:
wherein, when the flap is in its closed position, a portion of a flap surface is between the upper surface of the core and the interior portion of the encasement (figs. 1-5).
Re Claim 6
Smith discloses:
wherein the first end of the flap is integral with the first end of the encasement (see figs. 2-5; see fig. 7).
Re Claim 7
Smith discloses:
wherein the second end of the flap is between the first end of the encasement and the second end of the encasement when the flap is in its open position (see fig. 2, note that when further folded back this limitation is satisfied).
Re Claim 8
Smith discloses:
wherein the second end of the encasement is closed (see Fig. 1; see C2 “…at the closed end E”).
Re Claim 9
Smith discloses:
wherein the first side of the flap is aligned with the first side of the encasement when the flap is in its open position (see fig. 2 for example, note that the elements are continuous and therefore aligned; see fig. 7).
Re Claim 10
Smith discloses:
wherein, when the flap is in its closed position and the core is received within the interior portion of the encasement, the second end of the encasement overlays the second end of the core (see all figs), the first side of the encasement overlays the first side of the core (see all figs), the second side of the encasement overlays the second side of the core (see all figs), the supper portion of the encasement overlays the upper portion of the core (see all figs), and the lower portion of the encasement overlays the lower portion of the core (see all figs).
Re Claim 11
Smith discloses:
wherein the core is composed of foam (C3 L28-32).
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) 12-14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Smith (US Patent No. 3605143).
Re Claim 12
Smith discloses all claim limitations, see above, except:
wherein the encasement is composed of a fire retardant fabric.
It would have been obvious to one having ordinary skill in the art prior to the effective filing date to have the encasement be composed of a fire-retardant fabric, 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 complying with safety regulations and/or to generally make the apparatus safer.
Re Claim 13
Smith discloses:
wherein the opening of the encasement has a height of 5 inches to 20 inches.
It would have been obvious matter of design choice to have wherein the opening of the encasement have a height of 5 inches to 20 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 to one having ordinary skill in the art prior to the effective filing date for the purpose of fitting commonly known mattress sizes.
Re Claim 14
Smith discloses:
wherein the opening of the encasement has a width of 25 inches to 80 inches.
It would have been obvious matter of design choice to have the opening of the encasement have a width of 25 inches to 80 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 to one having ordinary skill in the art prior to the effective filing date for the purpose of fitting commonly known mattress sizes.
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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/DAVID E. SOSNOWSKI/
Primary Patent Examiner
Art Unit 3673
/David E Sosnowski/Primary Patent Examiner, Art Unit 3673