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.
Claim(s) 1-9 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hemmi (WO 2017/187627).
Regarding Claim 1, Hemmi discloses a pillow (1) comprising:
a main supporter (214) being an elastic member (214 covered in elastomer 213) protruding upward (see Fig. 3) and having first and second regions configured to support by having contact and applying pressure to, at least, areas between superior and inferior nuchal lines on an occipital bone of a supine person (intended use of lying supine, as seen in Fig. 4 of Hemmi),
the first region being configured and positioned to extend from a left end of a portion of a trapezius muscle of the person to a portion of a left sternocleidomastoid muscle of the person, both the portions attaching to the occipital bone (structure of a human body related to the intended use),
the second region being configured and positioned to extend from a right end of the portion of the trapezius muscle to a portion of a right sternocleidomastoid muscle of the person attaching to the occipital bone (structure of a human body related to the intended use);
and
a sub-supporter (224) being an elastic member (224 covered in elastomer 223) designed to be lower in supporting position than the main supporter, the sub-supporter being configured to support a portion of a head of the person on a superior side of the superior nuchal line by applying pressure on the portion of the head (intended use of lying supine, as seen in Fig. 4 of Hemmi), wherein
the pillow lacks members under, at least, a region ranging from the first to the second cervical vertebra of the person and a region of a temporal muscle of the person (see Fig. 3, intended use of lying supine on the pillow of Hemmi).
Regarding Claim 2, Hemmi discloses wherein the main supporter includes:
a left-sternocleidomastoid-muscle supporting portion configured to support a portion of the left sternocleidomastoid muscle by applying upward pressure thereon, the portion of the left sternocleidomastoid muscle attaching to a left region on a left temporal bone of the person, the left region ranging from the superior nuchal line to a mastoid process; and
a right-sternocleidomastoid-muscle supporting portion configured to support a portion of the right sternocleidomastoid muscle by applying upward pressure thereon, the portion of the right sternocleidomastoid muscle attaching to a right region on a right temporal bone of the person, the right region ranging from the superior nuchal line to a mastoid process. See annotated Fig. 2 below.
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Regarding Claim 3, Hemmi discloses wherein the main supporter is formed such that the left- and right-sternocleidomastoid- muscle supporting portions are higher in supporting position than a center portion of the main supporter (see annotated Fig. 2 above with center portion between the left and right portions).
Regarding Claims 4, 6 and 7, Hemmi discloses a main limiter (220) being a protrusion located on an opposite side of the sub-supporter from the main supporter and higher than the sub-supporter, the main limiter configured to prevent superior displacement of the head (see Fig 3).
Regarding Claims 5, 8 , and 9, Hemmi discloses wherein the main supporter is tilted or curved such that lateral portions thereof further away from a center portion thereof in a left-right direction of the person are configured and positioned to be nearer to a shoulder of the person (see annotated Fig. 2 above).
Response to Arguments
Applicant's arguments filed January 19th, 2026 have been fully considered but they are not persuasive.
Regarding Applicant arguments that the pillow of Hemmi cannot be used for lying face-up […], the pillow of Hemmi shown in Fig. 3 is not designed for, and would not be used for, lying face-up […], and Fig. 3 of Hemmi is entirely concerned with a face-down sleeping orientation, re-orienting the user in Hemmi for face-up sleeping is not contemplated. — Examiner notes that Applicant is attempting to distinguish the instant invention apart from Hemmi by the intended usage of the invention, i.e. lying face-up (supine) vs. lying face-down (prone). 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. "[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987).” See MPEP 2114(II). Hemmi does not strictly teach away from using the pillow (1) in a lying-face up position. In fact, Fig. 4 of Hemmi shows a user in a face-up position albeit on recessed part 314 instead of over hole 101. Since Hemmi is capable of performing the same intended use and has the same claimed structure, it meets the claimed requirements.
Regarding Applicant’s argument that even if the face support portion (20) of Hemmi had been used for lying face-up, it would have been impossible to support "the main support portion (214)" and "the sub-support portion (224).” — Examiner is unsure of the basis of this argument, as it is not clear what would have been “impossible to support”. Face support portion 20 of Hemmi being used for lying face-up would support the head of a user with main support portion 214 and sub-support portion 224 just as well as it supports the head of a user lying face-down.
Conclusion
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 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
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