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 .
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.
Election/Restrictions
Applicant’s election without traverse of Species I as represented by figures 1-8 in the reply filed on 2/12/26 is acknowledged.
Claim 4 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 2/12/26.
Claim Objections
Claim 5 is objected to because of the following informalities: grammar issue. The claim recites the grammatically awkward phrase “when viewed from top." Appropriate correction is required.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Section 33(a) of the America Invents Act reads as follows:
Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.
Claims 1-3 and 5 are rejected under 35 U.S.C. 101 and section 33(a) of the America Invents Act as being directed to or encompassing a human organism. See also Animals - Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (indicating that human organisms are excluded from the scope of patentable subject matter under 35 U.S.C. 101).
Claim 1 positively recites “where a head and neck of a user lying in a supine position are supported” which is directed to or encompasses a human organism. Applicant may instead wish to consider claiming –…an upper surface part configured to support a head and neck of a user lying in a supine position--.
Claim 5 positively recites ““a back side of the pillow body located near a shoulder of the lying user forms a convex curve toward a front side so that a user’s shoulder line is adjacent when viewed from top, and has a curved surface that protrudes backward from bottom to top so that an upper end of the back side of the pillow body (A) fits around an upper side of the shoulder” which is directed to or encompasses a human organism. Applicant may wish to consider amending the claim in the same manner as suggested above regarding claim 1.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 5 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 5 recites the limitation “a back side of the pillow body located near a shoulder of the lying user forms a convex curve toward a front side so that a user’s shoulder line is adjacent when viewed from top, and has a curved surface that protrudes backward from bottom to top so that an upper end of the back side of the pillow body (A) fits around an upper side of the shoulder.” The claim is unclear in that it limits structure based upon the relative positioning of the user, who may or may not be present or who may not be in the position relative to the apparatus intended by applicant. The claim scope cannot be determined, as written, absent the user’s presence and use in the prescribed manner and the claim appears to positively recite the user rather than presenting structural and/or functional recitations relative to the user.
The claims referred to in any and all rejections below are rejected as best understood.
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.
(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) 1-2 is/are rejected under 35 U.S.C. 102(a)(1) and/or (a)(2) as being anticipated by Bowers (US PG Pub No. 20140026323).
Re Claim 1
Bowers discloses:
A cervical pillow (see all figs. and flip the apparatus upside-down) comprising:
a pillow body (100) including: a supine posture support part (110’s central area); and a side-lying posture support part (periphery and/or left and right sides of 110) configured to extend in each direction from the supine posture support part (see figs. 1-3), and made of a material with elasticity and resilience (abstract),
wherein the supine posture support part (figs. 1-3) is provided such that an upper surface thereof is flush with an upper surface of the side-lying posture support part (see figs. 1-3 noting again to flip the apparatus upside-down), and has an alignment guide groove (neck groove on one side or the other as plainly shown in fig. 2 in combination with the central recessed area, for example) recessed upward on a bottom surface corresponding to an upper surface part where a head and a neck of a user lying in a supine position are supported (figs. 1-3).
Re Claim 2
Bowers discloses:
wherein the alignment guide groove (figs. 1-3) comprises:
a first alignment guide part (central area) configured to be depressed by the head of the user lying in the supine position (figs. 1-3); and
a second alignment guide part (one of the neck areas) recessed to have a lower height than the first alignment guide part (figs. 1-3) and configured to be depressed by the neck of the user lying in the supine position (figs. 1-3).
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Bowers (US PG Pub No. 20140026323) in view of Greenawalt et al. (US PG Pub No. 20050150051 and hereinafter “Greenawalt”).
Re Claim 3
Bowers discloses all claim limitations, see above, including:
a bottom of the second alignment guide part has a left-right width that is same as a left-right width of a bottom of the first alignment guide part, and a left-right width of a top of the second alignment guide part is larger than a left-right width of a top of the first alignment guide part (figs. 1-3).
Bowers does not explicitly disclose:
wherein the first alignment guide part is shaped like a square horn.
Greenawalt teaches a first alignment guide part shaped like a square horn (540) for the purpose of comfortably supporting a user’s head in an unstressed position and to promote proper posture. It would therefore have been obvious to one having ordinary skill in the art prior to the effective filing date to modify Bowers to have the first alignment guide part shaped like a square horn as taught by Greenawalt for the purpose articulated above.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Bowers (US PG Pub No. 20140026323) in view of Kitson (US PG Pub No. 20240023734).
Re Claim 5
Bowers discloses all claim limitations, see above, except:
wherein a back side of the pillow body located near a shoulder of the lying user forms a convex curve toward a front side so that a user's shoulder line is adjacent when viewed from top, and has a curved surface that protrudes backward from bottom to top so that an upper end of the back side of the pillow body fits around an upper side of the shoulder.
Kitson teaches all of the above in figs. 1A – 2B and abstract (see also 3A-3B) so as to avoid pressure on a shoulder socket when a person uses a pillow. It would therefore have been obvious to one having ordinary skill in the art prior to the effective filing date to modify Bowers to include the limitations above as taught by Kitson for the purpose articulated above.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Additional pillow / cushion structures are provided. Many of the additional references include central recesses. Quite a few appear to be very similar to applicant’s disclosed invention when flipped upside-down and several are relevant even when not flipped upside-down. Some references have been included for particular features such as convex shoulder connection portions.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAVID E SOSNOWSKI whose telephone number is (571)270-7944. The examiner can normally be reached 8:30 AM - 3:30 PM and 9 PM through 11:59 PM Monday through Friday, generally.
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.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/DAVID E. SOSNOWSKI/
Primary Patent Examiner
Art Unit 3673
/David E Sosnowski/Primary Patent Examiner, Art Unit 3673