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 .
Specification
The disclosure is objected to because of the following informalities: On page 5, in paragraph 0029, the term --a-- should be inserted before the term “breathing”.
Appropriate correction is required.
Claim Objections
Claim 1 is objected to because of the following informalities: In claim 1, line 11, the term --is-- should be inserted after the term “system”. Appropriate correction is required.
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); and 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 1-7 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 11-17 of U.S. Patent No. 12,150,905. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1-7 are generic to all that is recited in claims 1 and 11-17 of U.S. Patent No. 12,150,905. In other words, claims 1 and 11-17 of U.S. Patent No. 12,150,905 fully encompass the subject matter of claims 1-7 and therefore anticipate claims 1-7. Since claims 1-7 are anticipated by claims 1 and 11-17 of the patent, they are not patentably distinct from claims 1 and 11-17. Thus the invention of claims 1 and 11-17 of the patent is in effect a “species” of the “generic” invention of claims 1-7. It has been held that the generic invention is anticipated by the species, see In re Goodman, 29 USPQ2d 2010 (Fed. Cir. 1993). Since claims 1-7 are anticipated (fully encompassed) by claims 1 and 11-17 of the patent, claims 1-7 are not patentably distinct from claims 1 and 11-17, regardless of any additional subject matter present in claims 1 and 11-17.
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.
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.
Claims 1-7 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent Application Publication No. 2009/0013470 to Richards et al. in view of U.S. Patent Application Publication No. 2009/0275808 to DiMaio et al. With respect to claim 1, Richards et al. '470 shows the claimed limitations of a patient support apparatus for supporting a patient, said patient support apparatus comprising: a mattress (10) defining a patient support surface, said mattress including an inflatable mattress portion (90, 92, 110, 116, 180), and said inflatable mattress portion having a plurality of states (i.e., with respect to rotation, percussion and vibration) (as shown in Figures 1, 2, 6 & 19-21 and as described on page 2, paragraph 0033; page 3, paragraphs 0042, 0044 & 0049; and on page 5, in paragraphs 0064-0070); a control system (120, 199) configured to control inflation or deflation of said inflatable mattress portion (90, 92, 110, 116, 180) to change between said states of said inflatable mattress portion (as shown in Figures 10-12 & 22 and as described on page 3, in paragraph 0053; page 5, paragraph 0071 and on page 6, in paragraph 0071); and a user interface (122) in communication with said control system (120, 199), said user interface configured to allow a user to input a selected state from said states of said inflatable mattress portion (90, 92, 110, 116, 180), and said control system (120, 199) being operable to inflate or deflate said inflatable mattress portion (90, 92, 110, 116, 180) in response to said selected state input at said user interface (122, 170) (as shown in Figures 10-12 & 16-18 and as described on page 3, in paragraph 0053; page 4, paragraphs 0053 & 0059-0062 and on page 5, in paragraphs 0062-0064).
With further respect to claim 1, Richards et al. '470 further discloses a condition wherein the control system (120, 199) is configured to modify said selected state of said inflatable mattress portion (90, 92, 110, 116, 180) in response to (1) a passage of time after said selected state was input into said control system (120, 199) and/or a (2) a sensed condition at said mattress (10) (see Figure 28 and page 8, paragraph 0092). However, Richards et al. '470 does not specifically disclose wherein the control system is configured to automatically modify said selected state. DiMaio et al. '808 provides the basis teaching of a patient support apparatus comprising a mattress (1159) defining a patient support surface, said mattress including an inflatable mattress portion (1161a-1161g, 1400) (as shown in Figures 1, 11E & 13B and as described on page 2, in paragraph 0009; page 5, paragraph 0063; page 11, paragraph 0118; and on page 12, in paragraph 0128); and a control system (206, 220) configured to control inflation or deflation of said inflatable mattress portion (1161a-1161g, 1400) (as shown in Figures 6 & 7 and as described on page 8, in paragraph 0084; page 9, paragraphs 0102 & 103 and on page 10, in paragraph 0103), wherein the control system (206, 220) is configured to automatically modify said selected state (as described on page 11, in paragraph 0114). The skilled artisan would have found it obvious before the effective filing date of the claimed invention to combine the patient support apparatus of Richards et al. '470 with the control system of DiMaio et al. '808 which is configured to automatically modify said selected state of said inflatable mattress portion with a reasonable expectation of success because it would have achieved the desirable result of facilitating comfort and care to a patient disposed on the mattress.
With respect to claims 2 and 3, Richards et al. '470 further teaches conditions wherein the selected state of said inflatable mattress portion (90, 92, 110, 116, 180) is a CPR state wherein said inflatable mattress portion is either fully deflated or max inflated, and wherein said sensed condition at said mattress (10) comprises a characteristic associated with CPR (as shown in Figures 16-18 & 24 and as described on page 4, in paragraphs 0059 & 0060; page 5, paragraph 0063 and on page 7, in paragraph 0087).
With respect to claims 4-6, Richards et al. '470 further teaches the use of a selected state of said mattress portion (90, 92, 110, 116, 180) which is a CPR state as stated in the immediately preceding paragraph, but does not specifically disclose conditions wherein the characteristic associated with CPR comprises a force or an increased weight associated with CPR, and further wherein the control system automatically modifies said selected state when the force is no longer present after a period of time or when the increased weight is removed. DiMaio et al. '808 provides the basic teaching that the control system is configured to automatically modify said selected state (as described on page 11, in paragraph 0114), and further wherein modification of the selected state is based on patient data such as the weight of a patient (as shown in Figures 8 & 9 and as described on page 1, paragraphs 0007-0009 and on page 10, in paragraphs 0107 & 0109). The skilled artisan would have it obvious before the effective filing date of the claimed invention to combine the patient support apparatus of Richards et al. '470 with the control system of DiMaio et al. '808 which automatically modifies said selected state when the force is no longer present after a period of time or when the increased weight is removed with a reasonable expectation of success because it would have achieved the desirable result of further facilitating comfort and care management to a patient disposed on the mattress.
With respect to claim 7, DiMaio et al. '808 further teaches a condition wherein said control system (206, 220) is configured to monitor a biometric condition of a patient supported on said mattress, and said sensed condition at said mattress comprises detecting when the biometric condition of the patient has changed (as shown in Figures 8 & 9 and as described on page 10, paragraphs 0107 & 0109). The skilled artisan would have found it obvious before the effective filing date of the claimed invention to combine the patient support apparatus of Richards et al. '470 with the control system of DiMaio et al. '808 which is configured to monitor a biometric condition of a patient supported on said mattress, and said sensed condition at said mattress comprises detecting when the biometric condition of the patient has changed, with a reasonable expectation of success because it would have achieved the desirable result of imparting enhanced comfort and care management to a patient disposed on the mattress.
Conclusion
The prior art made of record and not relied upon is considered pertinent to Applicant's disclosure: Lafleche et al. ‘004, Theunick et al. ‘528, Lafleche et al. ‘926, Lafleche et al. ‘287, Lafleche et al. ‘636, Lafleche et al. ‘202, Lafleche et al. ‘362, Lafleche et al. ‘265, Lafleche et al. ‘564, Lafleche et al. ‘273, Lafleche et al. ‘158, Lafleche et al. ‘792, Lafleche et al. ‘307 and Lafleche et al. ‘781.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ROBERT G SANTOS whose telephone number is (571)272-7048. The examiner can normally be reached Monday-Friday 9am-11:30am and 2pm-7:30pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Justin C 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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/ROBERT G SANTOS/Primary Examiner, Art Unit 3673