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.
Claim(s) 1-11 and 13-14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Adat (US 6,490,743) in view of Rukel (US 9,462,902).
Regarding Claim 1, Adat discloses an adjustable pillow (10) comprising:
a casing (20) having an opening; and
a first compartment (housing pillow 12) and a second compartment (housing neck rolls 22 or 24), where the first compartment may be larger in volume than the second compartment (see Fig. 1) and each of the first and second compartments are accessible from the opening (see Fig. 2),
the second compartment extending along a length of a side of the casing and occupying at least a portion of the first compartment (see Fig. 2), wherein the first compartment and the second compartment are each configured to selectively receive and retain fill material (12 and 24) via the opening. Adat fails to disclose a firmness and/or a loft is adjustable via addition or removal of fill material from at least one of the first compartment or the second compartment. Rukel teaches a firmness and/or a loft is adjustable via addition or removal of fill material from at least one of a first compartment or a second compartment (see Col. 5-6, Lines 62-8). It would have been obvious to one having ordinary skill in the art at the time the invention was filed to modify the adjustable pillow Adat of with the capability of adding/removing fill material of Rukel. The motivation would have been to fully customize the fluff of a pillow to a user’s liking, thus enhancing convenience.
Regarding Claims 2-4, Adat fails to disclose wherein a responsive foam has a midnight sky color, sky-blue color, or a purple color. Rukel teaches a “high resilience shredded foam”. Adat and Rukel are analogous art because they are from the same field of endeavor, i.e. pillows. It would have been obvious to one having ordinary skill in the art at the time the invention was filed to modify the fill of Adat with the responsive foam of Rukel. The motivation would have been to provide a soft surface yet firm support for a user’s head, thus providing comfort. Applicant’s claims toward specific colors, i.e. midnight sky color, sky-blue color, and purple color are considered to be non-functional printed matter. “To be given patentable weight, the printed matter and associated product must be in a functional relationship. A functional relationship can be found where the printed matter performs some function with respect to the product to which it is associated. See Lowry, 32 F.3d at 1584, 32 USPQ2d at 1035 (citing Gulack, 703 F.2d at 1386, 217 USPQ at 404)”. “Where a product merely serves as a support for printed matter, no functional relationship exists.” See MPEP 2111.05 (I)(A)(B). Therefore no patentable weight has been given to the claimed colors of the foam.
Regarding Claim 5, Adat discloses a fiber fill (see Col. 3, Lines 43-45). Applicant’s claim toward a white color is considered to be non-functional printed matter. “To be given patentable weight, the printed matter and associated product must be in a functional relationship. A functional relationship can be found where the printed matter performs some function with respect to the product to which it is associated. See Lowry, 32 F.3d at 1584, 32 USPQ2d at 1035 (citing Gulack, 703 F.2d at 1386, 217 USPQ at 404)”. “Where a product merely serves as a support for printed matter, no functional relationship exists.” See MPEP 2111.05 (I)(A)(B). Therefore no patentable weight has been given to the claimed color of the fiber fill.
Regarding Claims 6-8, Adat fails to disclose a mixture of fiber fill and responsive foam, as required by the claims. Rukel teaches fiber fill (710) dispersed throughout responsive foam (715). It would have been obvious to one having ordinary skill in the art at the time the invention was filed to modify the fill of Adat with the fiber/responsive-foam fill of Rukel. The motivation would have been to provide a soft surface yet firm support for a user’s head, thus providing comfort. Applicant’s claims toward specific colors or appearances, i.e. clouds dispersed throughout a midnight sky color, new day color, or purple color are considered to be non-functional printed matter. “To be given patentable weight, the printed matter and associated product must be in a functional relationship. A functional relationship can be found where the printed matter performs some function with respect to the product to which it is associated. See Lowry, 32 F.3d at 1584, 32 USPQ2d at 1035 (citing Gulack, 703 F.2d at 1386, 217 USPQ at 404)”. “Where a product merely serves as a support for printed matter, no functional relationship exists.” See MPEP 2111.05 (I)(A)(B). Therefore no patentable weight has been given to the claimed colors of the foam.
Regarding Claim 9, Adat fails to disclose additional fill material to be added to the casing to thereby adjust a comfort level of the adjustable pillow. Rukel teaches additional fill material to be added to a casing to thereby adjust a comfort level of the adjustable pillow (see Col. 5-6, Lines 62-8). It would have been obvious to one having ordinary skill in the art at the time the invention was filed to modify the adjustable pillow Adat of with the capability of adding fill material of Rukel. The motivation would have been to fully customize the fluff of a pillow to a user’s liking, thus enhancing convenience.
Regarding Claim 10, Adat fails to disclose wherein the casing comprises at least one layer of an elastomeric material. Rukel teaches wherein a casing (105) comprises at least one layer of an elastomeric material (see Col. 5, Lines 11-15). It would have been obvious to one having ordinary skill in the art at the time the invention was filed to modify the casing Adat of with elastomeric material of Rukel. The motivation would have been to keep the fill material from migrating and retain a uniform shape/thickness throughout the pillow.
Regarding Claim 11, Adat discloses wherein the second compartment comprises part of a neck support (22 or 24).
Regarding Claim 13, Adat as modified in Claim 6 rejection teaches wherein the fill material comprises:
a responsive foam (Rukel: 715) cut into at least one shape; and
a fiber fill (Rukel: 710) mixed with the responsive foam to increasing a comfort of the responsive foam and/or cause pieces of the responsive foam from clinging to each other.
Regarding Claim 14, Adat discloses a third compartment (compartment housing the other of 22 or 24) positioned adjacent to a surface of the adjustable pillow.
Claim(s) 15-17, and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Adat (US 6,490,743) in view of Rukel (US 9,462,902), as applied to Claim 1 above, and further in view of Tesch (US 4,959,880).
Regarding Claim 15, Adat as modified by Rukel teaches an adjustable cushion system comprising:
an adjustable cushion (Adat: 10) comprising:
a casing (Adat: 20) having an opening providing access to a primary compartment (Adat: housing pillow 12) and at least one secondary compartment (Adat: housing neck rolls 22 or 24), wherein the primary compartment is larger in volume than the at least one secondary compartment, and the at least one secondary compartment extends along a length of a side of the casing and occupies at least a portion of the primary compartment (Adat: see Figs. 1 and 4);
a fill material within the primary compartment (Adat: pillow 12) and the secondary compartment (Adat: fiber fill, see Col. 3, Lines 43-45), wherein the primary compartment and the at least one secondary compartment are each configured to selectively receive and retain fill material via the opening (Adat: see Figs. 1 and 3) such that at least one of a loft or a firmness of the adjustable cushion is adjustable via an addition of or removal of fill material from at least one of the primary compartment or the at least one secondary compartment (Rukel: see Col. 5-6, Lines 62-8).
Adat fails to disclose:
a secondary cushion comprising:
a second casing having an opening; and
additional fill material within the second casing,
the firmness and/or the loft of the adjustable cushion being adjustable via:
addition of the additional fill material from the secondary cushion to the primary compartment and/or the secondary compartment of the casing of the adjustable cushion; or
removal of removed the fill material from the primary compartment and/or the secondary compartment of the casing of the adjustable cushion and placement of the removed fill material in the second casing of the secondary cushion.
Tesch teaches a secondary cushion (5) comprising:
a second casing having an opening (6); and
a fill material within the second casing (see Col. 2, Lines 52-57),
a firmness and/or a loft of an adjustable cushion (1) being adjustable via:
addition of added fill material from the secondary cushion to a primary compartment (4) and/or the secondary compartment of the casing of the adjustable cushion; or
removal of removed fill material from the primary compartment (4) and/or the secondary compartment of the casing of the adjustable cushion and placement of the removed fill material in the second casing of the secondary cushion (see Col. 2, Lines 58-65).
Adat and Tesch are analogous art because they are from the same field of endeavor, i.e. pillows. It would have been obvious to one having ordinary skill in the art at the time the invention was filed to modify the pillow of Adat with the second casing/pillow of Tesch. The motivation would have been to customize the firmness of any of pillows 12,22, or 24, thus allowing for a user to adjust the firmness of the pillow(s) to their desired level.
Regarding Claim 16, Adat as modified teaches a decorative pillow (Tesch: see pillow 5). “Decorative” is subjective and as it relates to the instant application appears to broadly apply to the hearts 36 seen in Fig. 8. Hearts are strictly ornamentation. Matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art. In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947) . See MPEP 2144.04 (I). Therefore, the limitation(s) has/have not been given patentable weight.
Regarding Claim 17, Adat fails to disclose wherein a height of the adjustable cushion ranges from about 4 inches to about 8 inches. Applicant has not established any sort of criticality for the claimed height range. It would have been obvious matter of design choice to make the height of Adat’s adjustable cushion to range from about 4 inches to about 8 inches since such a modification would have involved a mere change in the size of a component. One of ordinary skill would be motivated to do so in order to meet a user’s specific needs/desires for a comfortable pillow height. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237, (CCPA 1955).
Regarding Claim 20, Adat discloses wherein the primary compartment of the adjustable cushion has a first firmness and the secondary compartment of the adjustable cushion has a second firmness that differs from the first firmness (see Col. 2, Lines 14-27).
Claim(s) 18-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Adat (US 6,490,743) in view of Rukel (US 9,462,902) and Tesch (US 4,959,880), as applied to claim 15 above, and further in view of Taylor (US 2020/0390247).
Regarding Claim 18, Adat fails to disclose wherein the casing of the adjustable cushion comprises at least one layer of an elastomeric grid. Taylor teaches wherein a casing of an adjustable cushion comprises at least one layer of an elastomeric grid (50 or 70). Adat and Taylor are analogous art because they are from the same field of endeavor, i.e. pillows. It would have been obvious to one having ordinary skill in the art at the time the invention was filed to modify the casing of Adat with the elastomeric grid of Taylor. The motivation would have been to provide additional cushioning, thus enhancing comfort for a user.
Regarding Claim 19, Adat as modified teaches wherein the elastomeric grid comprises a hexagonal grid (Taylor: see para. [0031]).
Response to Arguments
Applicant's arguments filed March 2nd, 2026 have been fully considered but they are not persuasive.
Regarding Applicant’s argument that Adat seems to disclose the manual adjustment of the neck rolls 22, 24 (e.g., by flipping the pillow cover) to adjust the support provided by the pillow 10, but does not disclose, teach, or suggest "wherein the first compartment and the second compartment are each configured to selectively receive and retain fill material via the opening such that at least one of a loft or a firmness is adjustable via an addition of or removal of fill material from at least one of the first compartment or the second compartment" let alone that "each of the first and second compartments are accessible from the opening" as in amended claim 1 — Examiner agrees with this assessment. Similar subject matter was claimed in original claim 12 (now cancelled) and rejected in view of Adat and Rukel. A new grounds of rejection of Claim 1 in view of Rukel is made above.
Regarding Applicant’s argument that Rukel does not disclose, teach, or suggest "wherein the first compartment and the second compartment are each configured to selectively receive and retain fill material via the opening such that at least one of a loft or a firmness is adjustable via an addition of or removal of fill material from at least one of the first compartment or the second compartment" whereby "each of the first and second compartments are accessible from the opening" as in amended claim 1 (emphasis in original) —Examiner respectfully disagrees. Adat discloses an opening within casing 20 (see at least Fig. 1) in which each of the compartments are accessible, i.e. able to be reached or used. Rukel was used to modify Adat with the capability of adjusting compartments via the addition or removal of fill material. The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
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 ERIC J KURILLA whose telephone number is (571)270-7294. The examiner can normally be reached Monday-Thursday 7AM-6PM.
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/ERIC J KURILLA/Primary Examiner, Art Unit 3619