Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Claim Rejections - 35 USC § 103
The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1-18 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over U.S. Pat. No. 2,818,063 to Smith et al.
Claim 1, Smith discloses a frame defined by a collar 10 comprising a first projection defined by a tongue 56 coupled to a second projection defined by a flap 60, the tongue and flap projections configured to cooperate and delineate a first concavity defined by an outside side edge; a third projection defined by a tongue 58 coupled to a fourth projection defined by a flap 62, the third and fourth projections configured to cooperate and delineate a second concavity defined by an outside side edge; and, an arcuate connector defined by a front portion 18 interposing and coupling the first projection to the second projection, the front portion delineating a third concavity (36,38, 40,42); wherein the collar is fabricated from a flexible plastic material capable of compressing under the weight of a user's head (col. 2 lines 9-13). Smith is silent to the plastic material being a resilient polymer. Selecting from a plethora of known plastic materials is considered an obvious modification and it would have been obvious for one having ordinary skill in the art before the effective filing date of the invention to select a resilient polymer with the Collar of Smith with a reasonable expectation of success because it would have provided and equivalent and alternative resilient material.
Claims 2 and 10, Smith discloses the frame wherein the front portion includes an orifice (24,64). Claims 3 and 11, Smith discloses the frame wherein the orifice is longitudinally elongated and has a length several times its height (fig. 1).
Claims 4 and 12, Smith discloses the frame wherein the orifice includes a non-planar profile across two perpendicular planes (fig. 1).
Claims 5 and 13, Smith discloses the frame wherein the first outside side edge has a first arcuate profile; the second outside side edge has a second arcuate profile; the third concavity has a third arcuate profile; the third arcuate profile interposes the first and second arcuate profiles (fig. 3).
Claims 6 and 14, Smith discloses the frame wherein the first projection includes a first paddle section; the second projection includes a second paddle section; the first paddle section and the second paddle sections cooperating to delineate the first concavity/gap (fig. 3).
Claims 7 and 15, Smith discloses the frame wherein the third projection includes a third paddle section; the fourth projection includes a fourth paddle section; the third paddle section and the fourth paddle sections cooperating to delineate the second concavity/gap (fig. 3).
Claims 8, 16, and 18 Smith discloses the frame wherein the frame comprises a single
plastic piece. With regards to the plastic being molded. It is well known that plastic is made by extracting crude oil and natural gas, refining them to produce smaller chemical molecules called monomers (like ethylene and propylene), and then chemically linking these monomers into long chains to form polymers during a process called polymerization. These polymers are then formed into plastic resin, often processed into pellets, and finally melted and molded into various plastic products.
Claims 9 and 17, Smith discloses a frame defined by a collar 10 comprising a connector defined by a front portion having a semi-circular profile demarcating a semi-circular shaped depression/concavity (36,38, 40,42)(fig. 1); a first limb defined by a tongue 56 connected to the connector; a second limb defined by a flap 60 connected to the connector and cooperating with the first limb to delineate a first gap/cup defined by an outside side edge therebetween, the second limb having mirrored symmetry with respect to the first limb; a third limb defined by a tongue 58 operatively coupled to the connector; and, a fourth limb defined by a flap 62 operatively coupled to the connector and cooperating with the third limb to delineate a second gap/cup defined by an outside side edge therebetween, the fourth limb having mirrored symmetry with respect to the third limb; wherein the frame is fabricated from a flexible plastic capable of providing increased deformation resistance as a weight applied to the frame increases (col. 2 lines 9-13). Smith is silent to the plastic material being a resilient polymer. Selecting from a plethora of known plastic materials is considered an obvious modification and it would have been obvious for one having ordinary skill in the art before the effective filing date of the invention to select a resilient polymer with the Collar of Smith with a
reasonable expectation of success because it would have provided and equivalent and alternative resilient material.
Applicant's arguments filed 12/23/2025 have been fully considered but they are not persuasive. In response to applicant's argument that the Examiner is required to consider the intended use of the present invention, a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. PRINCIPLES OF LAW "Section 103 forbids issuance of a patent when 'the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.'" KSR International Co. v. Teleflex Inc., 127 S. Ct. 1727, 1734 (2007). "If a person of ordinary skill can implement a predictable variation, § 103 likely bars its patentability." Id. at 1740. Smith explicitly recites that the frame defined by “the collar 10 is made preferably from a suitable flexible material such as leather, but it is conceivable that within the concepts of the present invention such substances as heavy felt, plastic or similar material may be utilized”. Flexible is customarily defined as capable of being flexed, pliant, or yielding to influence therefore the flexible material of Smith is capable of being flexed, pliant, or yielding to influence of the weight of a persons’ head being supported by the device of Smith. Once again, Smith explicitly discloses that the flexible materials such as plastic are capable of being selected for the frame of Smith.
Therefore, selecting from a plethora of known plastic materials is considered an obvious modification especially since Smith explicitly discloses the use of a flexible plastic material. As previously stated, the combination of references as a whole would have provided and equivalent and alternative flexible plastic material capable of being flexed, being pliant, or yielding to influence of the weight of a persons’ head that is supported by the device of Smith. Furthermore, a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art.
If the prior art structure is capable of performing the intended use, then it meets the claim. The flexible plastic material taught by Smith meets the Applicant’s broad structural language of the frame being fabricated by a resilient/flexible plastic polymer material such that the plastic material is inherently capable of being flexed, pliant, or yielding to influence.
Contrary to the Appellant’s arguments, the Applicant has provided no evidence that they were the first to discover selecting a known plastic material such as polymer that is neither novel nor inventive or beyond the technical grasp of a person of ordinary skill in the art.
Once again, the Examiner has set forth reasons for combining the references, and the reasons articulated by the Examiner have rational underpinnings.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure
WO 2015138654 A1 to Wong discloses a head support frame being made from a resilient polymer.
U.S. Pat. No. 9,021,636 to Schwingendorf et al. discloses a head support having portions that compress to support a persons’ head in a neutral, upright and balanced position.
U.S. Pat. No. 2018/0049568 to Cruz discloses a head support pillow made from flexible materials.
THIS ACTION IS MADE FINAL. 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 FREDRICK C CONLEY whose telephone number is (571)272-7040. The examiner can normally be reached Monday-Friday 8:30am-4:30pm.
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, Matthew Troutman can be reached on (571) 270-3654. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/FREDRICK C CONLEY/Primary Examiner, Art Unit 3679