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 1, 14, and 18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 17 of U.S. Patent No. 10,772,438. Although the claims at issue are not identical, they are not patentably distinct from each other because claim 1 of the reference patent contains all the limitations of and therefore fully encompasses claims 1 and 14 of the instant application. Additionally, claim 17 of the reference patent contains all the limitations of and therefore fully encompasses claims 1 and 18 of the instant application.
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.
The following claims contain limitations which are being interpreted under 35 U.S.C. 112(f).
Claim 8 contains the limitation “means for delivering air to the air layer”. Applicant’s specification contains the corresponding structure of the air engine 16, which is described in paragraphs 0033-0039.
Claim 9 contains the limitation “means for connecting the layer assembly to a bed”. Applicant’s specification contains the corresponding structure of the flaps 24, described in paragraph 0041.
Claim 10 contains the limitation “means for defining flow paths through the layer assembly.” Applicant’s specification contains the corresponding structure of the stitching 28, described in paragraph 0043.
Claim 16 contains the limitation “means for connecting the hose assembly to the air engine to allow for the hose assembly to swivel with respect to the air engine and to decrease the chance of kinking of the hose assembly”. Applicant’s specification contains the corresponding structure of swivel fitting 82, described in paragraphs 0072-0073.
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 8 and 14 are 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 8 recites the limitation "the air layer" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim. For examination purposes, it is assumed “the air layer” was intended to refer to “the layer assembly”.
Claim 14 contains the limitation “some air…flows under the lower spacer material, some air…flows into the lower spacer material, and some air…flows to the sides of the lower spacer material”. A single claim which claims both an apparatus and the method steps of using the apparatus is indefinite under 35 U.S.C. 112(b) as it creates confusion as to whether infringement occurs when one creates a system that allows the user to perform the claimed method or whether infringement occurs when the user actually performs the method. See MPEP 2173.05(p)(II). For examination purposes it is assumed the claim was intended to read “such that some air from the distribution manifold is configured to flow”.
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.
Claims 1, 6, 8, 10, 12, 13, and 17 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Zaiss (U.S. Publication No. 2014/0182061).
Regarding claim 1, Zaiss discloses an air system 10 for a bed, comprising: a layer assembly 70 having a head end, a foot end, and first and second sides (Figure 8), wherein the layer assembly has a head portion near the head end, a foot potion near the foot end, and a middle portion between the head portion and the foot portion (Figure 8), the layer assembly 70 having: a spacer layer 72 comprising spacer material configured to allow for air flow through the spacer material (Figure 8 and paragraphs 0048-0049); and a cover 74 and 76 comprising a cover top layer 74 and a cover bottom layer 76, wherein the cover 74 and 76 substantially encloses the spacer layer 72 with the cover top layer 74 above the spacer layer 72 and the cover bottom layer 76 below the spacer layer 72 (Figure 8 and paragraph 0049); and a distribution manifold 78 extending through a portion of the cover 74 and 76 (Figure 8), wherein the distribution manifold 78 is positioned above the cover bottom layer and under the spacer layer 72 so as to flow air from the distribution manifold to a space under the spacer layer 72 (Figures 6-7, paragraphs 0046-0047, where the distribution manifold may comprise a pair of wings 66 with an air gap between the wings 66 from which air flows into the spacer material, and see paragraph 0049 where the manifold 78 may be similar to manifold 38), from the space under the spacer layer 72 into the spacer layer 72, and from the spacer layer 72 out through the cover top layer (Figures 8-9 and paragraph 0057).
Regarding claim 6, Zaiss discloses the subject matter as discussed above with regard to claim 1. Zaiss further discloses a bed system, comprising: an adjustable foundation; a mattress 2 positioned on the adjustable foundation (Figures 8-9 and paragraph 0050); the air system of claim 1 (see discussion of claim 1, above), wherein the layer assembly 70 is positioned on top of the mattress 2 on a first side of the mattress 2 with the second side of the layer assembly substantially aligned with a middle of the mattress (paragraph 0044), wherein the distribution manifold 78 is connected to the layer assembly 70 at the first side of the layer assembly 70 proximate a side of the mattress 2 such that the distribution manifold 78 and 16 hangs down along at least a portion of the side of the mattress 2 (Figures 8-9).
Regarding claim 8, Zaiss discloses the subject matter as discussed above with regard to claim 1. Zaiss further discloses means 14 for delivering air to the air layer 70 (paragraph 0017 and Figure 1).
Regarding claim 10, Zaiss discloses the subject matter as discussed above with regard to claim 1. Zaiss further discloses means 82 for defining flow paths through the layer assembly 70 (Figure 9 and paragraph 0051).
Regarding claim 12, Zaiss discloses the subject matter as discussed above with regard to claim 1. Zaiss further discloses wherein the layer assembly 70 further comprises a lower spacer material (defined by the lower of the two wings 66, Figures 6-7, paragraphs 0046-0047, where the distribution manifold may comprise a pair of wings 66 with an air gap between the wings 66 from which air flows into the spacer material, and see paragraph 0049 where the manifold 78 may be similar to manifold 38), positioned at the middle portion of the layer assembly 70 under the spacer layer (Figures 8-9), wherein the distribution manifold 78 is positioned in the middle portion of the layer assembly 70 at the first side of the layer assembly 70 (Figures 8-9), and wherein the distribution manifold 78 is aligned with the lower spacer material 66 such that at least part of the air blown out of the distribution manifold is blown into the lower spacer material 66 (Figures 6-7, paragraphs 0046-0047, and see paragraph 0049 where the manifold 78 may be similar to manifold 38).
Regarding claim 13, Zaiss discloses the subject matter as discussed above with regard to claims 1 and 12. Zaiss further discloses wherein the lower spacer material 66 is an elongated strip extending from a first lower spacer end proximate the distribution manifold 78 to a second lower spacer end proximate the second side of the layer assembly 70 (the lower spacer material 66 defined by the lower of the two wings 66, Figures 6-7, paragraphs 0046-0047, where the distribution manifold may comprise a pair of wings 66 with an air gap between the wings 66 from which air flows into the spacer material, and see paragraph 0049 where the manifold 78 may be similar to manifold 38), wherein the spacer layer 72 extends substantially from the head end to the foot end and from the first side to the second side of the layer assembly 70 (Figures 8-9), and wherein the lower spacer material 66 is configured to receive air from the distribution manifold 78 and allow air flow through the lower spacer 66 material such that some air flows from the lower spacer material 66 into the spacer layer proximate the second side of the layer assembly 70 (Figures 6-7, paragraphs 0046-0047), some air flows from the lower spacer material 66 into the spacer layer proximate the first side of the layer assembly 70, and some air flows from the lower spacer material 66 into the spacer layer between the first and second sides of the layer assembly 70 (Figures 6-9, paragraphs 0046-0047).
Regarding claim 17, Zaiss discloses the subject matter as discussed above with regard to claim 1. Zaiss further discloses wherein the layer assembly further comprises stitching 82 extending through the cover top layer 74, the cover bottom layer 76, and the spacer layer 72 in a pattern that defines flow paths 84 from the distribution manifold 78 (Figure 9 and paragraphs 0051-0055), wherein the stitching 82 is patterned with one or more lines 82A-D that cross the middle portion of the layer assembly 70 so as to restrict flow from the distribution manifold 78 at the first side to the second side of the layer assembly (Figure 9 and paragraphs 0051-0055).
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.
Claims 2-3, 9, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Zaiss in view of Kaminski (U.S. Patent No. 8,950,025).
Regarding claim 2, Zaiss discloses the subject matter as discussed above with regard to claim 1. Zaiss does not disclose a first flap extending from the head end and having a first retention feature; and a second flap extending from the foot end and having a second retention feature, wherein the air system is sized and configured such that when the layer assembly is positioned on a mattress the first and second flaps are each sized and configured to wrap around opposite ends of the mattress and tuck under the mattress with the first and second retention features being positioned under the mattress to at least partially retain the layer assembly on the mattress.
Kaminski teaches a first flap 26 extending from the head end and having a first retention feature 28 (Figures 1-2 and Col. 2, line 61-Col. 3, line 2); and a second flap 26 extending from the foot end and having a second retention feature 28, wherein cover 10 is sized and configured such that when the cover 10 is positioned on a mattress 14 the first and second flaps 26 are each sized and configured to wrap around opposite ends of the mattress 14 and tuck under the mattress 14 with the first and second retention features 28 being positioned under the mattress to at least partially retain the cover 10 on the mattress 14 (Figures 1-3 and Col. 3, line 49-Col. 4, line 2).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified Zaiss (directed to an air distribution pad for a mattress) with Kaminski (directed to an attachable cushion for a mattress) and arrived at a first flap extending from the head end and having a first retention feature; and a second flap extending from the foot end and having a second retention feature, such that when the layer assembly is positioned on a mattress the first and second flaps wrap around opposite ends of the mattress and tuck under the mattress with the first and second retention features being positioned under the mattress to retain the layer assembly on the mattress. One of ordinary skill in the art would have been motivated to do so because the flaps of Kaminski aid in holding a cushion in place on the top of mattress (Col. 5, lines 6-15).
Regarding claim 3, Zaiss, as modified, discloses the subject matter as discussed above with regard to claims 1 and 2. Zaiss, as modified, further discloses wherein the layer assembly 70 configured to be positioned on a two-person mattress 2 and sized to cover about half of a top surface of the mattress 2 (see Zaiss, paragraphs 0018-0019), and wherein the first and second flaps 26 are suitable for retaining the layer assembly 10 on the two-person mattress 14 (see Kaminski, Figures 1-3 and Col. 3, line 49-Col. 4, line 2 and Col. 5, lines 6-15).
Regarding claim 9, Zaiss discloses the subject matter as discussed above with regard to claim 1. Zaiss does not explicitly disclose means for connecting the layer assembly to a bed.
Kaminski teaches means 26 and 28 for connecting the layer assembly 20 to a bed 14 (Figures 1-3 and Col. 3, line 49-Col. 4, line 2).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified Zaiss (directed to an air distribution pad for a mattress) with Kaminski (directed to an attachable cushion for a mattress) and arrived at means for connecting the layer assembly to a bed. One of ordinary skill in the art would have been motivated to do so because the flaps of Kaminski aid in holding a cushion in place on the top of mattress (Col. 5, lines 6-15).
Regarding claim 19, Zaiss discloses an air system 10 for a bed, comprising: a layer assembly 70 having a head end, a foot end, and first and second sides (Figures 8-9), wherein the layer assembly has a head portion near the head end, a foot potion near the foot end, and a middle portion between the head portion and the foot portion (Figures 8-9), the layer assembly 70 having: a spacer layer 72 comprising spacer material configured to allow for air flow through the spacer material (Figure 8 and paragraphs 0048-0049); a cover 74 and 76 comprising a cover top layer 74 and a cover bottom layer 76, wherein the cover 74 and 76 substantially encloses the spacer layer 72 with the cover top layer 74 above the spacer layer 72 and the cover bottom layer 76 below the spacer layer 72 (Figure 8 and paragraph 0049), wherein the cover 74 and 76 defines an air inlet into the layer assembly 70 (defined by where the distribution manifold 78 and 16 extend into the layer assembly 70, Figure 9).
Zaiss does not disclose a first flap extending from the head end and having a first retention feature; and a second flap extending from the foot end and having a second retention feature, wherein the air system is sized and configured such that when the layer assembly is positioned on a mattress the first and second flaps are each sized and configured to wrap around opposite ends of the mattress and tuck under the mattress with the first and second retention features being positioned under the mattress to at least partially retain the layer assembly on the mattress.
Kaminski teaches a first flap 26 extending from the head end and having a first retention feature 28 (Figures 1-2 and Col. 2, line 61-Col. 3, line 2); and a second flap 26 extending from the foot end and having a second retention feature 28, wherein cover 10 is sized and configured such that when the cover 10 is positioned on a mattress 14 the first and second flaps 26 are each sized and configured to wrap around opposite ends of the mattress 14 and tuck under the mattress 14 with the first and second retention features 28 being positioned under the mattress to at least partially retain the cover 10 on the mattress 14 (Figures 1-3 and Col. 3, line 49-Col. 4, line 2).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified Zaiss (directed to an air distribution pad for a mattress) with Kaminski (directed to an attachable cushion for a mattress) and arrived at a first flap extending from the head end and having a first retention feature; and a second flap extending from the foot end and having a second retention feature, such that when the layer assembly is positioned on a mattress the first and second flaps wrap around opposite ends of the mattress and tuck under the mattress with the first and second retention features being positioned under the mattress to retain the layer assembly on the mattress. One of ordinary skill in the art would have been motivated to do so because the flaps of Kaminski aid in holding a cushion in place on the top of mattress (Col. 5, lines 6-15).
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Zaiss in view of Kaminski and further in view of Collins (U.S. Publication No. 2014/0317846).
Regarding claim 4, Zaiss, as modified, discloses the subject matter as discussed above with regard to claims 1 and 2. Zaiss, as modified, further discloses wherein the distribution manifold 78 is connected to the layer assembly 70 proximate the first side (see Zaiss, Figures 8-9).
Zaiss, as modified, does not disclose one or more connectors connected to the layer assembly proximate the second side, wherein the one or more connectors are configured to connect the second side of the layer assembly to a side of a second layer assembly.
Collins teaches one or more connectors 30 and 35 connected to the layer assembly 20 proximate the second side (Figures 1-2 and 5A), wherein the one or more connectors 30 and 35 are configured to connect the second side of the layer assembly 20 to a side of a second layer assembly 21 (Figures 1-2 and 5A and paragraphs 0050-0052 and 0066).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified Zaiss (directed to an air distribution pad for a mattress) with Collins (directed to a bed covering with interchangeable halves) and arrived at one or more connectors connected to the layer assembly proximate the second side, wherein the one or more connectors are configured to connect the second side of the layer assembly to a side of a second layer assembly. One of ordinary skill in the art would have been motivated to do so because the connectors of Collins allow for individual users in a double bed to customize the bed coverings according to their needs while being securing in place across the surface of the bed (paragraphs 0050-0052 and 0066).
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Zaiss in view of Collins.
Regarding claim 5, Zaiss discloses the subject matter as discussed above with regard to claim 1. Zaiss further discloses wherein the distribution manifold 78 is connected to the layer assembly 70 proximate the first side (see Zaiss, Figures 8-9).
Zaiss does not disclose a plurality of buttons connected to the layer assembly proximate the second side and positioned at least partially under the layer assembly; and a plurality of loops positioned proximate the second side of the layer assembly, wherein the plurality of loops are positioned with respect to the plurality of buttons such that the plurality of loops can connect to buttons of a second layer assembly that is configured similar to the layer assembly and the plurality of buttons can connect to loops of the second layer assembly so as to interconnect the layer assembly with the second layer assembly.
Collins teaches a plurality of buttons 30 connected to the layer assembly 20 proximate the second side and positioned at least partially under the layer assembly (Figures 1-2 and 5A); and a plurality of loops 35 positioned proximate the second side of the layer assembly 20 (Figure 5A), wherein the plurality of loops 35 are positioned with respect to the plurality of buttons 30 such that the plurality of loops 35 can connect to buttons 30 of a second layer assembly 21 that is configured similar to the layer assembly 20 and the plurality of buttons 30 can connect to loops 35of the second layer assembly so as to interconnect the layer assembly 20 with the second layer assembly 21 (Figures 1-2 and 5A and paragraphs 0050-0052 and 0066).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified Zaiss (directed to an air distribution pad for a mattress) with Collins (directed to a bed covering with interchangeable halves) and arrived at a plurality of buttons and loops connected to the layer assembly proximate the second side and positioned at least partially under the layer assembly; and a plurality of loops positioned proximate the second side of the layer assembly, to connect to buttons and loops of a second layer assembly. One of ordinary skill in the art would have been motivated to do so because the connectors of Collins allow for individual users in a double bed to customize the bed coverings according to their needs while being securing in place across the surface of the bed (paragraphs 0050-0052 and 0066).
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Zaiss in view of Kaminski and further in view of Parish (U.S. Publication No. 2011/0289684).
Regarding claim 7, Zaiss discloses the subject matter as discussed above with regard to claim 1. Zaiss further discloses an air engine 14 configured to deliver air (Figure 1 and paragraph 0017); and a hose assembly 16 connecting the air engine 14 to the layer assembly 70 via the distribution manifold (Figures 8-9). Zaiss does not disclose wherein the air system further comprises: a first flap extending from the head end and having a first retention feature positioned under the mattress; a second flap extending from the foot end and having a second retention feature positioned under the mattress; a mattress cover that at least partially covers the mattress, the layer assembly, the first flap, the second flap, and the distribution manifold.
Kaminski teaches a first flap 26 extending from the head end and having a first retention feature 28 positioned under the mattress (Figures 1-2 and Col. 2, line 61-Col. 3, line 2); and a second flap 26 extending from the foot end and having a second retention feature 28, positioned under the mattress 14 (Figures 1-3 and Col. 3, line 49-Col. 4, line 2).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified Zaiss (directed to an air distribution pad for a mattress) with Kaminski (directed to an attachable cushion for a mattress) and arrived at a first flap extending from the head end and having a first retention feature; and a second flap extending from the foot end and having a second retention feature, the flaps being positioned under the mattress. One of ordinary skill in the art would have been motivated to do so because the flaps of Kaminski aid in holding a cushion in place on the top of mattress (Col. 5, lines 6-15).
Additionally, Parish teaches a mattress cover (defined by the fitted sheet placed over/around the distribution assembly described in paragraph 0029) that at least partially covers the mattress 50, the layer assembly 110, and the distribution manifold 252 (paragraph 0029).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified Zaiss, as modified, (directed to an air distribution pad for a mattress) with Parish (also directed to an air distribution pad for a mattress) and arrived at a mattress cover that at least partially covers the mattress, the layer assembly, the first flap, the second flap, and the distribution manifold. One of ordinary skill in the art would have been motivated to do so because the sheet of Parish holds the air system in place between a user the mattress (paragraph 0029).
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Zaiss in view of Shippee (U.S. Patent No. 3,230,556) and further in view of Augustine (U.S. Publication No. 2010/0101418).
Regarding claim 11, Zaiss discloses the subject matter as discussed above with regard to claim 1. Zaiss further discloses wherein the distribution manifold 78 comprises a vertically-extending portion 16 and a horizontally extending portion 78 connected to the vertically-extending portion at a top of the vertically-extending portion 16 (Figures 8-9).
Zaiss does not disclose wherein the vertically-extending portion defines a flow path with a larger cross-sectional area at the top of the vertically-extending portion than at a bottom of the vertically-extending portion, and wherein the horizontally-extending portion defines a plurality of channels configured to deliver air received from the vertically-extending portion of the distribution manifold out into the layer assembly at different angles
Shippee teaches wherein the vertically-extending portion 45 defines a flow path with a larger cross-sectional area at the top of the vertically-extending portion 45 than at a bottom of the vertically-extending portion 45 (Figure 5).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified Zaiss (directed to an air distribution assembly) with Shippee (directed to a blower assembly for a bed) such that the vertically-extending portion of the distribution manifold defines a flow path with a larger cross-sectional area at the top than at a bottom. One of ordinary skill in the art would have been motivated to do so because the wider distribution manifold of Shippee allows for the air to spread along a wider distribution path before entering the bed (Col. 3, lines 45-55).
Additionally, Augustine teaches wherein the horizontally-extending portion 614 defines a plurality of channels (defined by ribs 616, Figure 6) configured to deliver air received from the vertically-extending portion (defined by the hose 110) of the distribution manifold 614 out into the layer assembly 600 at different angles (Figures 1 and 6 and paragraph 0054).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified Zaiss, as modified, (directed to an air distribution pad for a mattress) with Augustine (directed to an air-conditioned pillow assembly) such that the horizontally-extending portion defines a plurality of channels configured to deliver air out into the layer assembly at different angles. One of ordinary skill in the art before the effective filing date would have been motivated to do so because the shape and ribs of Augustine’s distribution manifold assist in evenly distributing air throughout the cushion (paragraph 0054).
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Zaiss in view of Formica (U.S. Patent No. 8,978,648).
Regarding claim 15, Zaiss discloses the subject matter as discussed above with regard to claim 1. Zaiss further discloses an air engine 14; and a hose assembly 16 connecting the air engine 14 to the layer assembly 70 via the distribution manifold 78 (Figures 1 and 8-9 and paragraph 0017). Zaiss does not disclose wherein the hose assembly has a substantially D-shaped cross section with a substantially straight portion opposite a curved portion such that the curved portion faces away from the layer assembly when the hose assembly is connected.
Formica teaches wherein the hose assembly 10 has a substantially D-shaped cross section with a substantially straight portion 30 opposite a curved portion 40 such that the curved portion 40 faces away from the assembly when the hose assembly 10 is connected (Col. 4, lines 30-39).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified Zaiss (directed to an air distribution pad for a mattress) with Formica (directed to an air hose) such that the hose assembly has a substantially D-shaped cross section with a substantially straight portion opposite a curved portion which faces away from the layer assembly when the hose assembly is connected. One of ordinary skill in the art would have been motivated to do so because the shape of the hose of Formica allows for the hose to lay flat against a surface (Col. 1, lines 42-58).
Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over Zaiss in view of Draudt (U.S. Patent No. 4,625,998).
Regarding claim 16, Zaiss discloses the subject matter as discussed above with regard to claim 1. Zaiss does not explicitly disclose means for connecting the hose assembly to the air engine to allow for the hose assembly to swivel with respect to the air engine and to decrease the chance of kinking of the hose assembly.
Draudt teaches means 70 for connecting the hose assembly 67 to the air engine to allow for the hose assembly to swivel with respect to the air engine and to decrease the chance of kinking of the hose assembly (Figure 9 and Col. 7, lines 9-33).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified Zaiss (directed to an air distribution pad for a mattress) with Draudt (directed to an air hose coupling) and arrived at means for connecting the hose assembly to the air engine which allows for the hose assembly to swivel with respect to the air engine and to decrease the chance of kinking of the hose assembly. One of ordinary skill in the art would have been motivated to do so because the swivel coupling of Draudt allows for the hose to rotate with respect to the air engine, which allows for a user to use the hose at different angles and may extend the life of the air hose compared to having to twist the hose (Col. 2, lines 37-47).
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Zaiss in view of Augustine.
Regarding claim 20, Zaiss discloses an air system 10 for a bed, comprising: a layer assembly 70 having a head end, a foot end, and first and second sides (Figure 8), wherein the layer assembly 70 has a head portion near the head end, a foot potion near the foot end, and a middle portion between the head portion and the foot portion (Figure 8), the layer assembly 70 having: a spacer layer 72 comprising spacer material configured to allow for air flow through the spacer material (Figure 8 and paragraphs 0048-0049); and a cover 74 and 76 comprising a cover top layer 74 and a cover bottom layer 76,wherein the cover 74 and 76 substantially encloses the spacer layer 72 with the cover top layer 74 above the spacer layer 72 and the cover bottom layer 76 below the spacer layer (Figure 8 and paragraph 0049); and a distribution manifold 78 and 16 extending through a portion of the cover 74 and 76 at the first side (Figures 8-9),
Zaiss does not disclose wherein the distribution manifold is substantially fan-shaped with a plurality of ribs defining channels so as to distribute air into the layer assembly toward the head portion, the middle portion, and the foot portion.
Augustine teaches wherein the distribution manifold 614 is substantially fan-shaped with a plurality of ribs 616 defining channels so as to distribute air into the layer assembly 600 toward the head portion, the middle portion, and the foot portion (Figure 6 and paragraph 0054).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified Zaiss (directed to an air distribution pad for a mattress) with Augustine (directed to an air-conditioned pillow assembly) such that the distribution manifold is fan-shaped with a plurality of ribs defining channels so as to distribute air into the layer assembly toward the head portion, the middle portion, and the foot portion. One of ordinary skill in the art before the effective filing date would have been motivated to do so because the shape and ribs of Augustine assist in evenly distributing air throughout the cushion (paragraph 0054).
Allowable Subject Matter
Claim 14 would be allowable if rewritten to overcome the nonstatutory double patenting rejection set forth in this Office action or upon the timely filing of a terminal disclaimer, if rewritten to overcome the rejection under 35 U.S.C. 112(b) set forth in this Office action, and to include all of the limitations of the base claim and any intervening claims.
Regarding claim 14, Zaiss discloses the subject matter as discussed above with regard to claim 1. Zaiss further discloses wherein the layer assembly 70 further comprises a lower spacer material 66 positioned at the middle portion of the layer assembly 70 under the spacer layer 72 (the lower spacer material 66 defined by the lower of the two wings 66, Figures 6-9, paragraphs 0046-0047, where the distribution manifold may comprise a pair of wings 66 with an air gap between the wings 66 from which air flows into the spacer material, and see paragraph 0049 where the manifold 78 may be similar to manifold 38), wherein the distribution manifold 78 is thicker and wider than the lower spacer material 66 such that some air from the distribution manifold 78 flows under the lower spacer material 66, some air from the distribution manifold 78 flows into the lower spacer material 66, and some air from the distribution manifold 78 flow to the sides of the lower spacer material 66 (Figures 6-9, paragraphs 0046-0047).
Zaiss does not disclose wherein the distribution manifold wider than the lower spacer material.
Augustine is cited as being of interest for teaching wherein the distribution manifold 614 is wider than internal baffles 622 (defined by baffles 622, Figure 6 and paragraph 0071 and see paragraph 0054), which aids in distributing air throughout the entire width of the pillow. However, the distribution manifold of Zaiss sits only in the central region of the layer assembly, allowing for the bed to articulate and bend above the distribution manifold. Providing a wider distribution manifold, as in the manner of Augustine where the manifold extends along the entire side of the layer assembly would frustrate this purpose, no longer allowing for the manifold to be positioned between where an articulating bed frame would fold and bend the air distribution pad. As such, there is no disclosure, teaching, or suggestion in the prior art of record such that a rejection of claim 14 may be reasonably maintained.
Claim 18 would be allowable if rewritten to overcome the nonstatutory double patenting rejection set forth in this Office action or upon the timely filing of a terminal disclaimer and to include all of the limitations of the base claim and any intervening claims.
Regarding claim 18, Zaiss discloses the subject matter as discussed above with regard to claim 1. Zaiss further discloses wherein the layer assembly further comprises a lower spacer material 66 (defined by the lower of the two wings 66, Figures 6-7, paragraphs 0046-0047, where the distribution manifold may comprise a pair of wings 66 with an air gap between the wings 66 from which air flows into the spacer material, and see paragraph 0049 where the manifold 78 may be similar to manifold 38) positioned at the middle portion of the layer assembly 70 that is aligned with the distribution manifold 78 under the spacer layer (Figures 8-9), wherein the layer assembly 70 further comprises stitching 82 extending through the cover top layer 74, the cover bottom layer 76, and the spacer layer 72 in a pattern that defines flow paths from the distribution manifold 78 (Figures 8-9 and paragraphs 0051-0052). Zaiss does not disclose wherein the stitching is patterned with one or more lines that also stitch at least partially into the lower spacer material but without entirely crossing the lower spacer material. Moreover, there would be no motivation to modify Zaiss such that the stitching extends into the lower spacer material. The lower spacer material of Zaiss is provided to aid in distributing air from the first side of the air distribution pad towards the second side. Including any stitching within the lower spacer material may obstruct the air exiting the hose 16 and prevent a substantial portion from reaching the second side of the air distribution pad. As such, there is no disclosure, teaching, or suggestion in the prior art of record such that a rejection of claim 18 may be reasonably maintained.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Swicegood (U.S. Patent No. 2,896,226) which discloses bedding comprising opposing heat and foot-end flaps.
Trotman (U.S. Patent No. 3,162,489) which discloses a layer assembly for an air system for a bed.
Pimenta (U.S. Publication No. 2013/0139315) which discloses which discloses bedding comprising opposing flaps.
Feher (U.S. Publication No. 2009/0000031) which discloses a layer assembly for an air system for a bed.
Brykalski (U.S. Publication No. 2011/0107514) which discloses a layer assembly for an air system for a bed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALISON N LABARGE whose telephone number is (571)272-6098. The examiner can normally be reached M-F 8:00-4:00.
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/ALISON N LABARGE/Examiner, Art Unit 3679
/Matthew Troutman/Supervisory Patent Examiner, Art Unit 3679