DETAILED ACTION
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 .
Status of the Application
Claims 1-20 have been examined in this application. This communication is the first action on merits. The Information Disclosure Statement (IDS) filed on 09/17/2024 has been acknowledged by the Office.
Claim Objections
Claim(s) 1, 5, 6, 7, 12-14, 19-20 objected to because of the following informalities:
In regards to Claim 1, there is a minor typographical error. Specifically, there is an improper spacing in the phrase “the body support portion , the body support portion having a first end and a second end,”. The comma is improperly separated from the preceding word by an extra space. Correction is required for formal clarity.
In regards to Claim 5, 7, 12, 13, 14, 19, and 20, there is an improper possessive noun phrasing. Each of these claims recite variations of the phrase “a user’s arm” or “a portion of a user’s arm”. The use of the possessive form (“user’s”) is not preferred for claim drafting due to the potential ambiguity regarding ownership. The suggested amendment is “an arm of a user” or “a portion of an arm of a user”.
In regards to Claim 6 and Claim 13, there is a minor typographical error: “of he apparatus”, instead of “of the apparatus”, the Examiner recommends the change for clarity and proper grammar.
Appropriate correction is required.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
The term “body element” as recited in claims 1, 3, 4, 8, 10, 11, 15, 17, and 18 is interpreted under 35 U.S.C. 112(f).
Claim(s) 1, 3, 4, 8, 10, 11, 15, 17 and 18 state “’body element” (prong A), further state, “configured to be removably disposed at least partially on at least one of the body support portion or the head support portion.” (prongs B – functional language of ‘configured to’ and prong C – the element is not modified by sufficient structure). The specification identifies the corresponding structure for performing this function as a body pillow*, as described in Para(s) 1117, 1124, 1129*, and 1141 and shown in Figs. 16–19, and equivalents thereof.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-3, 5-6, 8-10, 12-13, 15-17 and 19 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Macleod (US 20140101852 A1).
In regards to Claim 1, Macleod teaches: An apparatus (Fig. 1) comprising: a body support portion (see annotated Fig. 1.1 from Macleod); a head support portion (see annotated Fig. 1.1 from Macleod) extending from the body support portion (see annotated Fig. 1.1 from Macleod), the body support portion having a first end (see annotated Fig. 1.1 from Macleod) and a second end (see annotated Fig. 1.1 from Macleod), the second end of the body support portion having a height greater than a height of the first end of the body support portion (see annotated Fig. 1.1 from Macleod), the second end of the body support portion and the head support portion collectively defining a perimeter boundary (see annotated Fig. 1.2 from Macleod) of an interior region (see annotated Fig. 1.2 from Macleod), a relief cavity defined by at least one of the body support portion (see annotated Fig. 5.1 from Macleod) or the head support portion, the relief cavity in fluid communication with the interior region (Fig. 1 vs. Fig. 5, shows the inner core layer 12 showing inflation/deflation such that the relief cavity is in fluid communication with the interior region to raise and lower such area/region); and a body element configured to be removably disposed at least partially on at least one of the body support portion (see annotated Fig. 4.1 from Macleod) or the head support portion.
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Annotated Fig. 1.1 from Macleod
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Annotated Fig. 1.2 from Macleod
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Annotated Fig. 5.1 from Macleod
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Annotated Fig. 4.1 from Macleod
In regards to Claim 2, Macleod teaches: The apparatus of claim 1, wherein the relief cavity includes an opening (see annotated Fig. 5.2 from Macleod) defined in a side edge of at least one of the body support portion (see annotated Fig. 5.2 from Macleod) or the head support portion.
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Annotated Fig. 5.2 from Macleod
In regards to Claim 3, Macleod teaches: The apparatus of claim 1, wherein the body element has a first arm (see annotated Fig. 4.1 from Macleod) and a second arm (see annotated Fig. 5.1 from Macleod) connected by an arc portion (see annotated Fig. 5.1 from Macleod).
In regards to Claim 5, Macleod teaches: The apparatus of claim 1, wherein the interior region defines a receiving portion (see annotated Fig. 11.1 from Macleod) configured to receive at least a portion of a user’s arm therein (see annotated Fig. 11.1 from Macleod).
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Annotated Fig. 11.1 from Macleod
In regards to Claim 6, Macleod teaches: The apparatus of claim 1, wherein the interior region defines a first receiving portion (see annotated Fig. 11.2 from Macleod) and a second receiving portion (see annotated Fig. 11.2 from Macleod)on an opposite side of a centerline of he apparatus (see annotated Fig. 11.2 from Macleod, partially on an opposite side thereof), the first receiving portion and the second receiving portion each configured to receive at least a portion of a user’s arm therein (see annotated Fig. 11.2 from Macleod, partially on an opposite side thereof).
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Annotated Fig. 11.2 from Macleod
In regards to Claim 8, Macleod teaches: An apparatus (Fig. 1) comprising: a base support including a body support portion (see annotated Fig. 1.1 from Macleod) and a head support portion (see annotated Fig. 1.1 from Macleod) extending from the body support portion (see annotated Fig. 1.1 from Macleod), the body support portion having a first end (see annotated Fig. 1.1 from Macleod) and a second end (see annotated Fig. 1.1 from Macleod), the second end of the body support portion having a height greater than a height of the first end of the body support portion (see annotated Fig. 1.1 from Macleod), the second end of the body support portion having an end surface facing the head support portion (see annotated Fig. 5.3 from Macleod) and defining an interior region between the body support portion and the head support portion (see annotated Fig. 5.3 from Macleod), the end surface of the body support portion extending from a center portion of the body support portion toward a lateral side of the body support portion (see annotated Fig. 5.3 from Macleod, showing the end surface extending from the center portion outward to a lateral side) and being nonlinear in a top view of the apparatus (see Examiner's note below); and a body element configured to be removably disposed at least partially on at least one of the body support portion (see annotated Fig. 4.1 from Macleod) or the head support portion.
Examiner's Note: The top section is non-linear as there is a region where the body element increases the elevation of the apparatus, specifically the body portion, and is nonlinear from a top view.
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Annotated Fig. 5.3 from Macleod
In regards to Claim 9, Macleod teaches: The apparatus of claim 8, further comprising: a relief cavity (see annotated Fig. 5.1 from Macleod) defined by an opening (see annotated Fig. 5.2 from Macleod) in a side edge of at least one of the body support portion or the head support portion (see annotated Fig. 5.2 from Macleod), the relief cavity in fluid communication with the interior region (Fig. 1 vs. Fig. 5, shows the inner core layer 12 showing inflation/deflation such that the relief cavity is in fluid communication with the interior region to raise and lower such area/region).
In regards to Claim 10, Macleod teaches: The apparatus of claim 8, wherein the body element has a first arm (see annotated Fig. 4.1 from Macleod) and a second arm (see annotated Fig. 5.1 from Macleod) connected by an arc portion (see annotated Fig. 5.1 from Macleod).
In regards to Claim 12, Macleod teaches: The apparatus of claim 8, wherein the interior region defines a receiving portion (see annotated Fig. 11.1 from Macleod) configured to receive at least a portion of a user’s arm therein (see annotated Fig. 11.1 from Macleod).
In regards to Claim 13, Macleod teaches: The apparatus of claim 8, wherein the interior region defines a first receiving portion (see annotated Fig. 11.2 from Macleod) and a second receiving portion (see annotated Fig. 11.2 from Macleod) on an opposite side of a centerline of he apparatus (see annotated Fig. 11.2 from Macleod), the first receiving portion and the second receiving portion each configured to receive at least a portion of a user’s arm therein (see annotated Fig. 11.2 from Macleod, partially on an opposite side thereof).
In regards to Claim 15, Macleod teaches: An apparatus (Fig. 1) comprising: a body support portion (see annotated Fig. 1.1 from Macleod); and a head support portion (see annotated Fig. 1.1 from Macleod), the body support portion having a first end (see annotated Fig. 1.1 from Macleod) and a second end (see annotated Fig. 1.1 from Macleod) and a top surface (see annotated Fig. 5.4 from Macleod) disposed at an angle relative to a bottom surface (see annotated Fig. 5.4 from Macleod showing the top surface at a inclined angle relative to the flat bottom surface), the second end having a height greater than a height of the first end (see annotated Fig. 1.1 from Macleod), the body support portion and the head support portion collectively defining an interior region (see annotated Fig. 1.2 from Macleod) between the second end of the body support portion and the head support portion (see annotated Fig. 1.2 from Macleod), a first portion of the second end of the body support portion being disposed at a first distance from the head support portion (see annotated Fig. 1.5 from Macleod) and a second portion of the second end of the body support portion being disposed at a second distance from the head support portion (see annotated Fig. 1.5 from Macleod), the first distance being different than the second distance (see annotated Fig. 1.5 from Macleod); a body element configured to be removably disposed at least partially on at least one of the body support portion (see annotated Fig. 4.1 from Macleod) or the head support portion; and a relief cavity defined by at least one of the body support portion (see annotated Fig. 5.1 from Macleod) or the head support portion, the relief cavity in fluid communication with the interior region (Fig. 1 vs. Fig. 5, shows the inner core layer 12 showing inflation/deflation such that the relief cavity is in fluid communication with the interior region to raise and lower such area/region).
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Annotated Fig. 5.4 from Macleod
In regards to Claim 16, Macleod teaches: The apparatus of claim 15, wherein the relief cavity includes an opening (see annotated Fig. 5.2 from Macleod) defined in a side edge of at least one of the body support portion (see annotated Fig. 5.2 from Macleod) or the head support portion.
In regards to Claim 17, Macleod teaches: The apparatus of claim 15, wherein the body element has a first arm (see annotated Fig. 4.1 from Macleod) and a second arm (see annotated Fig. 5.1 from Macleod) connected by an arc portion (see annotated Fig. 5.1 from Macleod).
In regards to Claim 19, Macleod teaches: The apparatus of claim 15, wherein the interior region defines a receiving portion (see annotated Fig. 11.1 from Macleod) configured to receive at least a portion of a user’s arm therein (see annotated Fig. 11.1 from Macleod).
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.
Claim(s) 4, 11 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Macleod (US 20140101852 A1) in view of Melcher et al., hereinafter 'Melcher' (US 20130198965 A1).
In regards to Claim 4, Macleod teaches: The apparatus of claim 1, but Macleod does not explicitly teach, wherein the body element has a length greater than a length of the body support portion.
Melcher teaches: wherein the body element has a length greater (see annotated Fig. 11.1 from Melcher) than a length of the body support portion (see annotated Fig. 11.1 from Melcher).
Macleod and Melcher are considered analogous prior art because both references relate to support devices and body-positioning systems in the same field of endeavor as the claimed apparatus. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the body element of Macleod to incorporate the teaching from Melcher that the body element has a length greater than a length of the body support portion, in order to provide an extended support structure that improves stability, comfort, and ergonomic accommodation.
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Annotated Fig. 11.1 from Melcher
In regards to Claim 11, Macleod teaches: The apparatus of claim 8, but Macleod does not explicitly teach, wherein the body element has a length greater than a length of the body support portion.
Melcher teaches: wherein the body element has a length greater (see annotated Fig. 11.1 from Melcher) than a length of the body support portion (see annotated Fig. 11.1 from Melcher).
Macleod and Melcher are considered analogous prior art because both references relate to body support systems used to position or support portions of a user. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the body element of Macleod based on Melcher’s teaching that the body element extends longer than the body support portion, thereby providing improved reach, enhanced functional support, and increased adaptability of the support structure.
In regards to Claim 18, Macleod teaches: The apparatus of claim 15, but Macleod does not explicitly teach, wherein the body element has a length greater than a length of the body support portion.
Melcher teaches: wherein the body element has a length greater (see annotated Fig. 11.1 from Melcher) than a length of the body support portion (see annotated Fig. 11.1 from Melcher).
Macleod and Melcher are considered analogous prior art because both references address support structures configured to position or support a user’s body during use, placing them in the same field of endeavor as the claimed invention. Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date to modify the body element of Macleod in view of Melcher’s teaching that the body element has a greater length than the body support portion, in order to enhance the functional support area and provide improved accommodation for the user’s body.
Allowable Subject Matter
Claim(s) 7, 14 and 20 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter:
In regards to Claim(s) 7, 14 and 20 the prior art of Macleod teaches the apparatus of each independent Claim (i.e. Claim’s 1 / 8/ 15) yet fails to teach, disclose or render obvious a support pillow member that is removably disposable within the interior region. The interior region in Macleod, as show in the annotated figures above, notably Fig. 1.2 from Macleod, corresponds to an upper area of the body support portion, where it extends past the upper shoulder region AND also is lateral to where the head support meets the shoulder support. In the design of Macleod, this space is left free as there is not only no functional space to receive a user’s arm, but also because this apparatus is configured for supine use, and would not be used in a side lying or prone position. The arm of the user is meant to be stationed within the body element, with arm positioning achieved externally via inflation of the device. Placing a removable pillow in this interior region would not create a receiving portion for the arm / head / or any other body part, and is inconsistent with the design and intended use of the device. Therefore, Macleod cannot render Claims 7, 14, or 20 obvious or anticipated to further include a support pillow member removably disposable within the interior region, the support pillow member and at least one of the body support portion or the head support portion collectively defining a receiving portion configured to receive at least a portion of a user's arm therein when the support pillow member is disposed within the interior region.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Aikman (US-20100078033-A1) teaches: A therapeutic cushioning device that encourages its user to sleep on the user's right or left side, instead of on the user's back or chest. Generally, the cushioning device includes a head support, a torso support, a leg support, and a hinge member that movably connects the leg support to the torso support. In some instances, the head support includes one or more air tube management system notches to accommodate a facemask. In some instances, the torso support extends from the head support to form an L-shaped cushion. Moreover, the torso support optionally has a perimeter having a concave portion and convex portion, where the concave portion is placed closer to the head support than the convex portion. By encouraging the user to lie in a side position, the cushioning device can help the user avoid challenges associated with sleeping on the user's back or chest.
Nelson (US-5479667-A) teaches: An ergonomic pillow assembly utilized to provide relaxing comfort and rest to a person having an upper torso problem with pain through the head, neck, and spinal assembly. The ergonomic pillow assembly includes 1) a head support assembly; 2) a thoracic support assembly connected to the head support assembly; 3) a waist and lumbar support assembly connected to the thoracic support assembly; and 4) an audio transmitter assembly to provide audio sound to the users thereof. The waist and lumbar support assembly includes a waist support member and a lumbar support member operable to hold the waist and lumbar portion of a user thereof in a neutral and comfortable support position. The audio transmitter assembly includes a speaker resonating chamber in the head support member operable to receive a pair of stereo speaker members therein.
Ericson (US-2782427-A) teaches: A pillow with a suitable surface to support the head. A recess below this surface accommodates the shoulder, and a connecting channel accommodates the arm. Below this recess the pillow is tapered to provide uniform pressure against the upper trunk. With this invention, the patient can rest comfortably on his side for long periods without disturbing the circulation in his shoulder, which would normally be under him and support an undue proportion of the weight.
Trevino (US-6067678-A) teaches: A patient support apparatus which includes a firm body support portion constructed of foam, with the foam halving a first side for placement on a bed or gurney, and the second side upon which the body of the patient would be laid. The foam apparatus would include a principal upper torso support portion for supporting a patient generally from the top of the patient's head to the lower buttock region of the patient; first and second leg portions which are attachable to a lower edge of the principal body support portion for supporting the legs of the patient, and attachable arm portions secured to the side edges of the upper body support portion for accommodating the arms of the patient. The upper sides of the principal body portion, leg portions and arm portions would further include contoured regions which would reflect the general shape of the patient as the patient is laid on the patient's back on the apparatus, and would provide a soft yet firm support for the patient along the entire body region of the patient during transport. It is foreseen that in other embodiments, the apparatus may include a generally principal body support portion for supporting, for example, an infant in the support portion, which would support the entire length of the infant. Further, it is foreseen that the apparatus may be utilized in its separate components, depending on the extent of injury to the person being transported. Furthermore, other embodiments may include pockets formed within the principal body portion for inserting heating pads or other types of materials so that the patient may receive some form of treatment during transport or while the person is housed within an emergency medical facility awaiting treatment or is under specialized care.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MADISON EMANSKI whose telephone number is (571)272-8473. The examiner can normally be reached M-F 7:30-4:30 EST.
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, Justin Mikowski can be reached at (571)-272-8525. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MADISON EMANSKI/Primary Examiner, Art Unit 3673