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 § 102
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 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.
Claim 11 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Gelbart (US4128907).
Regarding claim 11, Gelbart teaches the use of rubber friction pads placed between a mattress support for a person to lie upon and an underlying support for the prevention of slipping of the mattress relative to the support surface (item 18, Fig. 1). It is noted that in the current claims the statement of how the attachment apparatus is “configured” appears to me a recitation of intended use, wherein the prior art device is as capable of being used as claimed as the device of the current claims. Further it is noted that the central portion of the pads of Gelbart may arbitrarily be referred to as a longitudinal body and lateral portions may be referred to as “lateral portions” wherein the lateral portions of Gelbart are reasonably as “affixable at least partially around the underlying surface”. However, it is noted that this a is product claim wherein the current claim does not require that the lateral portions are affixed and the current claim is not a method claim requiring a step of “affixing”. As such, the current claims remain properly rejected.
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.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 3 and 5-10 are rejected under 35 U.S.C. 103 as being unpatentable over Squitieri et al. (USPGPub 2014/0048082) in view of Gelbart (US4128907).
Regarding claims 1, 3 and 6, Squitieri teaches that formation of a pressure mitigation apparatus having inflatable geometrically shaped chambers formed by connections between an upper and lower layer as claimed wherein the device is configured to be laid upon a support surface (see background summary, abstract and Fig. 1). Squitieri fails to teach the use of an attachment apparatus present between the pressure mitigation apparatus and the support surface capable of limiting movement between the two. However, Gelbart teaches the use of rubber friction pads placed between a mattress support for a person to lie upon and an underlying support for the prevention of slipping of the mattress relative to the support surface (item 18, Fig. 1). Therefore, it would have been obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to use the friction pads of Gelbart in the invention of Squitieri in order to prevent movement between the support pad and the underlying support as was done by Gelbart. Further it is unclear as to how the friction pads of Gelbart are attached to the surface of Gelbart. However, they are reasonably either rigidly attached or non-rigidly attached (i.e., readily detachable or non-readily detachable). Therefore, given a limited number of possibilities, it would have been considered “obvious to try” for one of ordinary skill in the art before the effective filing date of the claimed invention to choose either option, both of which would be predictable and provide a reasonable expectation of success.
Regarding claim 5, a material “configured for direct contact with the human body” is any material capable thereof as is the material of Squitieri.
Regarding claim 7, the top layer, pliable core and bottom layer of the claim may all be the same and may be arbitrarily defined as such given that the claim provides no distinction between them other than how they are intended to be used wherein a single layer material of Gelbart may arbitrarily be sectioned as claimed.
Regarding claim 8, the term “latex” is synonymous with rubber in the prior art.
Regarding claim 9, the rubber pads of Gelbart are not presumed to be porous and would be considered to be water impermeable without clarification otherwise.
Regarding claim 10, the device of Squitieri further comprises a layer that may be breathable [0022] and porous [0023], reasonably implying a permeability to fluids.
Claims 4 and 17-19 are rejected under 35 U.S.C. 103 as being unpatentable over Squitieri et al. (USPGPub 2014/0048082) in view of Gelbart (US4128907) as applied to claims 1, 3 and 5-10 above and further in view of Karim et al. (USPGPub 2016/0166422).
Regarding claim 4, the teachings of Squitieri in view of Gelbart are as shown above. Squitieri in view of Gelbart fails to teach the use of a silicone coating on the underside of the attachment apparatus although the use of an adhesive is described above. However, Karim teaches that silicone pressure sensitive adhesives are known in the prior art and suitable for use on medical devices [0043-004]. Therefore, it would have been obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to substitute the adhesive of Squitieri in view of Gelbart with the adhesive of Karim as a simple substitution of one known adhesive for another wherein the substitution would yield predictable results based on the suitability of the silicone adhesive of Karim in the medical field.
Regarding claim 17, the teachings of Squitieri in view of Gelbart and Karim are as shown above. Squitieri in view of Gelbart and Karim fails to teach the use of an antimicrobial coating as claimed. However, Peck teaches that it is known to provide portions of medical mattresses (that may also be inflatable) with coatings that have antimicrobial properties (col. 3, lines 1-25). Therefore, it would have been obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to provide the antimicrobial coatings of Peck to the inflatable support device of Squitieri in view of Gelbart and Karim in order to prevent the presence of bacteria on the support device of Squitieri in view of Gelbart and Karim. Squitieri in view of Gelbart fails to teach the use of a silicone coating on the underside of the attachment apparatus although the use of an adhesive is described above. However, Karim teaches that silicone pressure sensitive adhesives are known in the prior art and suitable for use on medical devices [0043-004]. Therefore, it would have been obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to substitute the adhesive of Squitieri in view of Gelbart with the adhesive of Karim as a simple substitution of one known adhesive for another wherein the substitution would yield predictable results based on the suitability of the silicone adhesive of Karim in the medical field.
Regarding claim 18, the device of Squitieri further comprises a layer that may be breathable [0022] and porous [0023], reasonably implying a permeability to fluids.
Regarding claim 19, the device of Squitieri may further comprise an impervious layer adjacent the breathable porous material that is capable of functioning as claimed [0103].
Claims 12-14 are rejected under 35 U.S.C. 103 as being unpatentable over Gelbart (US4128907)
Regarding claims 12-14, the teachings of Gelbart are as shown above. Gelbart fails to teach the dimensions of his rubber attachment apparatus. However, said apparatus do have relative dimensions which would be presumably on the order of long width of approximately 3 inches and a longitudinal length of perhaps 20 inches based on common dimensions associated with a common bed mattress and a guesstimate based on Fig. 1 of Gelbart. However, it cannot be certainly stated that the prior art relative dimensions read upon the claimed ranges. However further, the Court has long 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. See In Gardnerv.TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984).
Claims 15-16 are rejected under 35 U.S.C. 103 as being unpatentable over Gelbart (US4128907) in view of Karim et al. (USPGPub 2016/0166422).
Regarding claim 15, the teachings of Karim are applicable to the teachings of Gelbart in the same manner that the teachings of Karim are applicable to the teachings of Squitieri in view of Gelbart as in the rejection of claims 4 and 17-19 above.
Regarding claim 16, the teachings of Gelbart in view of Karim are as shown above. Gelbart in view of Karim fails to teach the use of a covering over the adhesive until the point of use. However, the examiner is taking Official Notice to inform the applicant that adhesives are commonly known in the prior art to be provided with covers until the point of use to prevent a loss of adhesion. This can be seen in a variety of fields including stickers for children, two-sided tape and adhesive wall-mount hooks sold in home improvement stores. Therefore, it would have been obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to cover the adhesive of Gelbart in view of Karim until the time of use in order to prevent loss of adhesion of the adhesive as is known to be done in the prior art.
Response to Arguments
As relates to the problems solved by the non-slip pads employed in the invention of Gelbart and why one would incorporate them into the invention of Squitieri, reasonably as stated they would be incorporated for the reduction of slippage just as they are applied in Gelbart. While the examiner acknowledges that Squitieri already employs straps for some level of preventing movement in the invention of Squitieri, it is reasonable to assume that non-slip pads would also provide additional prevention of slippage and be an improvement at least in part over the invention of Squitieri. As such, their incorporation is logical and was properly laid out by the examiner and the examiner maintains that the claims should remain rejected as claimed.
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 ANDREW J BOWMAN whose telephone number is (571)270-5342. The examiner can normally be reached Mon-Sat 5:00AM-11:00AM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Dah-Wei Yuan can be reached at 571-272-1295. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANDREW J BOWMAN/Examiner, Art Unit 1717
/Dah-Wei D. Yuan/Supervisory Patent Examiner, Art Unit 1717