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 .
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they include the following reference character(s) not mentioned in the description: 130 (in fig. 14). Corrected drawing sheets in compliance with 37 CFR 1.121(d), or amendment to the specification to add the reference character(s) in the description in compliance with 37 CFR 1.121(b) 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. 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 26 is objected to because of the following informalities: line 6 recites a plurality of "flexible modules" but lines 7 and 11-12 recite "elastic modules"; while it appears the recitations are referring to the same element, the terminology should be consistent in designating the claim elements. Appropriate correction is required.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 26-45 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 31, 34-36 and 45 of copending Application No. 18/687783 (reference application), U.S. Publication No. 2024/0382010 A1. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 31, 34-36 and 45 of the published reference application recite the subject matter claimed in claims 26 and 45 of the instant application.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Regarding instant claim 26: With reference to claim 35, which includes the limitations of base claim 31 and intervening claim 34, recites the flexible cover of instant claim 26 (as an “outer cover” in claim 31) comprising the same following elements: enclosed receiving space, top and bottom layers (as top and bottom “cover body”), side enclosure that is detachable, elastic module having a conical spring and spring bracket (as “spring support”, claim 35), and rail beams (claim 35).
Regarding instant claim 45: With reference to claim 45 of the published reference application, which includes the limitations of base claim 31 and intervening claims 34-36, the structure and structural cooperative relationships of the detachable elastic pad resulting from the assembling method of instant claim 45 are also rendered obvious; namely, the reference claims 31 and 34-36 recite the flexible cover elements as explained above, and reference claim 45 recites the elastic balance net (as “elastic balancing web layer”).
Allowable Subject Matter
Claims 26-45 would be allowable upon the filing of a proper Terminal Disclaimer.
The following is a statement of reasons for the indication of allowable subject matter: the prior art did not show or suggest, either singly or combined, an elastic pad that can be disassembled by comprising the pad of a enclosing flexible cover having a bottom layer configured with a plurality of rail beams, wherein a plurality of elastic modules comprising conical springs held in a spring bracket can be slid onto the rail beams and enclosed by the cover.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
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/T.A./Examiner, Art Unit 3636
/DAVID R DUNN/Supervisory Patent Examiner, Art Unit 3636