DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Interpretation
It is being considered that a dimensionally stabilizing substrate (lacking a formal definition in the art) is drawing a definition from applicant’s specification (paragraph 0018) to incorporate a continuous filament, needled polyester with resin binder with a weight of at least two ounces per square yard (or equivalents thereof) and that the dimensionally stabilizing substrate has a dimension at least twice the thickness of the scrim sheet (or equivalent), the combination of which facilitates the functional limitations necessitated by applicant’s claims.
Specification
Applicant is reminded of the proper content of an abstract of the disclosure.
A patent abstract is a concise statement of the technical disclosure of the patent and should include that which is new in the art to which the invention pertains. The abstract should not refer to purported merits or speculative applications of the invention and should not compare the invention with the prior art.
If the patent is of a basic nature, the entire technical disclosure may be new in the art, and the abstract should be directed to the entire disclosure. If the patent is in the nature of an improvement in an old apparatus, process, product, or composition, the abstract should include the technical disclosure of the improvement. The abstract should also mention by way of example any preferred modifications or alternatives.
Where applicable, the abstract should include the following: (1) if a machine or apparatus, its organization and operation; (2) if an article, its method of making; (3) if a chemical compound, its identity and use; (4) if a mixture, its ingredients; (5) if a process, the steps.
Extensive mechanical and design details of an apparatus should not be included in the abstract. The abstract should be in narrative form and generally limited to a single paragraph within the range of 50 to 150 words in length.
See MPEP § 608.01(b) for guidelines for the preparation of patent abstracts.
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
The abstract of the disclosure is objected to because of purported merit and speculative applications (e.g. "flexible enough to allow the pocketed spring assembly to be roll packed for shipping"). Correction is required. See MPEP § 608.01(b).
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-11, 13-16, and 17-20 of U.S. Patent No. 11013340 (referenced as ‘reference patent’) AND U.S. Patent No. 11771235 (referenced as ‘second reference patent) AND U.S. Patent No. 12137813 (referenced as ‘third reference patent’). Although the claims at issue are not identical, they are not patentably distinct from each other because they each recite “A bedding or seating product comprising: a pocketed spring assembly comprising a plurality of parallel strings of springs joined together to form a pocketed spring assembly core,” “a dimensionally stabilizing substrate secured to one of top and bottom surfaces of at least some of the strings of the pocketed spring assembly core to create a pocketed spring assembly” “a scrim sheet secured to the other of the top and bottom surfaces of said at least some of the strings of the pocketed spring assembly” “wherein said dimensionally stabilizing substrate is at least twice as thick as the scrim sheet and more rigid than the scrim sheet” (or otherwise ‘thicker and more rigid than the scrim sheet’) “cushioning materials; and an upholstered covering encasing said pocketed spring assembly and cushioning materials” as evidenced between claims 1, 2, 10, and 15 of the reference patent and claim 1.
For the purposes of conciseness, similar identical/analogous limitations are shared between claims 1, 2, 10, and 15 of the instant application and the reference patent and the second reference patent and the third reference patent. Where the only difference seems to be a mark broader but anticipated by the previous applications and recite and necessitate by product by process considerations a functional feature that manifests as a function of the stabilizing substrate, identified and interpreted to be identical between the reference patent and the instant application (a continuous filament, needled polyester with resin binder with a weight of at least two ounces per square yard (or equivalents thereof) and that the dimensionally stabilizing substrate has a dimension at least twice the thickness of the scrim sheet (or equivalent))
The limitations of Claim 3 of the instant application also appears to be verbatim present as claim 3 in the reference patent.
The limitations of Claim 4 of the instant application also appears to be verbatim present as claim 4 in the reference patent.
The limitations of Claim 5 of the instant application also appears to be verbatim present as claim 5 in the reference patent.
The limitations of Claim 6 of the instant application also appears to be verbatim or analogously present as claim 20 in the reference patent.
The limitations of Claim 7 of the instant application also appears to be verbatim present as claim 7 in the reference patent.
The limitations of Claim 8 of the instant application also appears to be verbatim present as claim 8 in the reference patent.
The limitations of Claim 9 of the instant application also appears to be verbatim present as claim 9 in the reference patent.
The limitations of Claim 11 of the instant application also appears to be verbatim present as claim 11 in the reference patent.
The limitations of Claim 12 of the instant application also appears to be verbatim or analogously present as claim 20 in the reference patent.
The limitations of Claim 13 of the instant application also appears to be verbatim present as claim 13 in the reference patent.
The limitations of Claim 14 of the instant application also appears to be verbatim present as claim 14 in the reference patent.
The limitations of Claim 16 of the instant application also appears to be verbatim or analogously present as claim 15 in the reference patent (recognizing the claim interpretation set forth in the Final Office Action mailed January 28th, 2021 as necessitating the continuous filament needled polyester with resin binder to achieve the functional features), and listed to be understood as applicant’s invention (Notice of allowance mailed March 22nd, 2021, page 5 “material constraints understood to be applicant’s invention(continuous filament needle polyester with resin binder (or equivalents))).
The limitations of Claim 17 of the instant application also appears to be verbatim or analogously present as claim 15 in the reference patent.
The limitations of Claim 18 of the instant application also appears to be verbatim present as claim 18 in the second reference patent.
The limitations of Claim 19 of the instant application also appears to be verbatim present as claim 19 in the reference patent.
The limitations of Claim 20 of the instant application also appears to be verbatim or analogously present as claim 20 in the reference patent.
Allowable Subject Matter
The following is a statement of reasons for the indication of allowable subject matter: The claims necessitate among other features analogous allowable subject matter as that claimed in the reference patents (11013340, 11771235, and 12137813) while broadening the scope to not necessitate the upward/downward bunching (pertinent 12137813), or to not necessitate a stabilizing substrate with particularly density twice the scrim sheet (pertinent 11771235), and to more narrowly be secured directly to the top or bottom surfaces and not necessitating a plurality of pockets and the narrower constructions thereof (pertinent 11013340) but still posing allowable subject matter by using the unique dimensionally stabilizing substrate and as being understood under a product by process necessitated interpretation that such material incorporates a continuous filament, needled polyester with resin binder with a weight of at least two ounces per square yard (or equivalents thereof) and that the dimensionally stabilizing substrate has a dimension at least twice the thickness of the scrim sheet (or equivalent).
Conclusion
The prior art previously made of record in (in the reference patents) and not relied upon is still considered pertinent to applicant's disclosure.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Luke F Hall whose telephone number is (571)272-5996. The examiner can normally be reached M-F 8am-5pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Justin Mikowski can be reached on 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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/LUKE HALL/Examiner, Art Unit 3673
/JUSTIN C MIKOWSKI/Supervisory Patent Examiner, Art Unit 3673