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 .
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 11 – 28 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 - 13 of U.S. Patent No. 12,127,678. Although the claims at issue are not identical, they are not patentably distinct from each other because both the present application and the ‘678 patent claim a system and method comprising a bed having a sleep environment, one or more sensors, and a controller configured to receive pressure and temperature data and adjusting a thermal property of the sleep environment. The claims of the present application are more broad than the claims of the ‘678 patent. Therefore, the claims of the ‘678 patent anticipate the claims of the present application.
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)(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) s 1 – 14, 20, 22, 23, and 26 – 28 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Palashewski et al. (US PGPUB 20160100696 – in IDS).
Regarding claim 11, Palashewski discloses a bed system comprising: a bed (e.g. 112) having a sleep environment (the term “sleep environment” is broad. Any surface where a person could fall asleep would necessarily have a “sleep environment.”);
one or more sensors configured to sense parameters of the sleep environment (e.g. ¶ 43);
and a controller operably connected to the bed (e.g. ¶ 28, 33), the controller comprising a processor (e.g. 136) and a computer-readable memory (e.g. 133), the controller configured to:
receive, from a first set of the one or more sensors, pressure data (e.g. ¶ 43)
receive, from a second set of the one or more sensors, temperature data (e.g. ¶ 49-50);
based on the received pressure data and the received temperature data, determining whether a user is in the bed (e.g. ¶ 6),
based on determining that the user is in the bed, selecting, from a plurality of possible thermoregulation adjustments, a thermoregulation adjustment (e.g. ¶ 49-50);
and adjusting a thermal property of the sleep environment based on the selected thermoregulation adjustment (e.g. ¶ 49-50).
Regarding claim 12, Palashewski discloses determining a current sleep environment state (e.g. ¶ 43); comparing the current sleep environment state to one or more conditional rules stored in a computer memory (e.g. ¶ 58); based on comparing the current sleep environment state to one or more conditional rules stored in a computer memory, identifying at least one conditional rule to execute (e.g. ¶ 58).
Regarding claim 13, Palashewski discloses determining a current time; identifying one or more conditional rules that include one or more time limitations; and comparing the current time to the one or more conditional rules that include the one or more time limitations (e.g. ¶ 61).
Regarding claim 14, Palashewski discloses determining a sleep state of the user; identifying one or more conditional rules that include one or more sleep state limitations; and comparing the sleep state of the user to the one or more conditional rules that include the one or more sleep state limitations (e.g. ¶ 40).
Regarding claim 20, Palashewski discloses providing an instruction to a heating ventilation and air condition system (HVAC) that controls a temperature of air in a room with the bed system (e.g. 316 in Fig. 3 and ¶ 59).
Regarding claim 22, Palashewski discloses the controller is further configured to: access user position information that includes an indication of a position of the user in the sleep environment, and wherein selecting from the plurality of possible thermoregulation adjustments, the thermoregulation adjustment is based on the user position information (e.g. ¶ 51).
Regarding claim 23, Palashewski discloses the controller is further configured to: access biometric information that includes an indication of a physiological condition of the user that is in the sleep environment; and wherein selecting, from the plurality of possible thermoregulation adjustments, the selected thermoregulation adjustment, is based on the biometric information (e.g. ¶ 41).
Regarding claims 26 – 28, Palashewski discloses the system as described above. By determining that the user is in the bed, Palashewski would also be capable of determining that the user is not in the bed (e.g. ¶ 41). Palashewski also discloses optimizing sleep conditions and both lowering and increasing the temperature (e.g. ¶ 48).
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 15 – 19, 21, 24, and 25 is/are rejected under 35 U.S.C. 103 as being unpatentable over Palashewski et al. in view of Youngblood et al. (US PGPUB 2021/0219736).
Regarding claims 15, 24, and 25, Palashewski discloses the claimed invention except for specifically reciting sensing REM and NREM sleep and circadian temperature cycles.
Youngblood teaches it is known change thermal properties of the sleep environment based on the indication of REM or NREM status (e.g. paragraph 119) and receiving circadian information that includes an indication of a circadian temperature cycle of the user within a particular time period (e.g. paragraph 276), and changing thermal properties based on the sensed parameters, the sleep stage that includes an indication of REM or NREM sleep and the circadian information (e.g. paragraph 277). It would have been obvious to one having ordinary skill in the art at the time of the effective filing date to modify the controllable device for changing thermal properties as taught by Palashewski with controlling the thermal properties based on REM or NREM status as taught by Youngblood, since such a modification would provide the predictable results of improving sleep quality of the user.
Regarding claims 16 – 19, Palashewski discloses that the mattress may have different independently controlled zones (e.g. ¶ 49 and 51) and multiple layers (e.g. Fig. 1). Furthermore, Youngblood teaches that the mattress may have different temperature zones in different parts of the bed (e.g. ¶ 144) and comprise multiple layers (e.g. ¶ 144) and circulating fluid to control the temperature (e.g. ¶ 4. It would have been obvious to one having ordinary skill in the art at the time of the effective filing date to modify the mattress as taught by Palashewski with the temperature zoned mattress as taught by Youngblood, since such a modification would provide the predictable results of providing different temperatures to different body parts or different users.
Regarding claim 21, Palashewski discloses using a mattress, but appears to be silent as to whether or not the sensors are integrated into the mattress. Youngblood teaches it is known to use sensors integrated into the mattress (e.g. paragraph 113). It would have been obvious to one having ordinary skill in the art at the time of the effective filing date to modify the mattress as taught by Palashewski with mattress having sensors integrated into it as taught by Youngblood, since such a modification would provide the predictable results of providing an accurate temperature reading at the surface of the mattress.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOSEPH M DIETRICH whose telephone number is (571)270-1895. The examiner can normally be reached Mon - Fri 8:00-5:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jennifer McDonald can be reached on 571-270-3061. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JOSEPH M DIETRICH/Primary Examiner, Art Unit 3796
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