Prosecution Insights
Last updated: August 17, 2026
Application No. 19/181,532

MATTRESS TOPPER

Non-Final OA §102§103§DOUBLEPATENT
Filed
Apr 17, 2025
Priority
Jan 21, 2016 — provisional 62/281,493 +2 more
Examiner
HARE, DAVID R
Art Unit
3673
Tech Center
3600 — Transportation & Electronic Commerce
Assignee
Bedgear LLC
OA Round
1 (Non-Final)
68%
Grant Probability
Favorable
1-2
OA Rounds
1y 4m
Est. Remaining
99%
With Interview

Examiner Intelligence

Grants 68% — above average
68%
Career Allowance Rate
418 granted / 618 resolved
+15.6% vs TC avg
Strong +32% interview lift
Without
With
+32.4%
Interview Lift
resolved cases with interview
Typical timeline
2y 8m
Avg Prosecution
21 currently pending
Career history
639
Total Applications
across all art units

Statute-Specific Performance

§101
0.8%
-39.2% vs TC avg
§103
54.5%
+14.5% vs TC avg
§102
21.8%
-18.2% vs TC avg
§112
17.4%
-22.6% vs TC avg
Black line = Tech Center average estimate • Based on career data from 618 resolved cases

Office Action

§102 §103 §DOUBLEPATENT
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 . Status of the Application Claims 21-40 have been examined in this application. Claims 1-20 were canceled via preliminary amendment filed 4/17/2025. This communication is the first action on merits. 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. Claim 21 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12,279,699. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the instant case are fully encompassed by the patented claim. Notably the instant case drops the limitations/details with respect to the anchor bands. Claim 22 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 2 of U.S. Patent No. 12,279,699. Claim 23 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 3 of U.S. Patent No. 12,279,699. Claim 24 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 4 of U.S. Patent No. 12,279,699. Claim 25 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 5 of U.S. Patent No. 12,279,699. Claim 26 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 6 of U.S. Patent No. 12,279,699. Claim 27 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 7 of U.S. Patent No. 12,279,699. Claim 28 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 8 of U.S. Patent No. 12,279,699. Claim 29 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 9 of U.S. Patent No. 12,279,699. Claim 30 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 10 of U.S. Patent No. 12,279,699. Claim 31 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 11 of U.S. Patent No. 12,279,699. Claim 32 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 12 of U.S. Patent No. 12,279,699. Claim 33 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 13 of U.S. Patent No. 12,279,699. 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. Claim(s) 21-27, 29, 31, 32, and 34-40 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by U.S. Patent 6,715,173 to Barman et al. (hereinafter Barman). Regarding claim 21, Barman teaches: A bed cover (see Fig. 2A, sleep system 10) comprising joined first and second panels (see Fig. 2A-C, upper and lower panels of upholstery 56 joined by upper and lower tape seams 54, see also col. 6, lines [30-34]), at least one of the panels comprising a first layer (see Fig. 2A-C and 3, upholstery layer 55/56/57), a second layer (see Fig. 2A-C, material layers 53) and a third layer (see Fig. 2C, matted layer 52), the third layers defining an inner cavity (see Fig. 2C, each 52 defines an inner cavity in which core layer 51 is placed), the first layers defining an outermost surface of the cover (see Fig. 2A-C, exterior surface of 56), wherein the first layers each comprise a first material (see col. 6, lines [40-43]: “woven strands of fibers such as woven cotton thread or combinations”), the second layers each comprise a second material (see col. 5, lines [59-64]: “Extra material layers 53 may also be used, such as woven cotton, wool or synthetic cloth or hybrids thereof, or sheet materials such as plastic films, solid or perforated, which may serve as moisture barriers, aeration promoters, liners, or flame or heat retarders”) and the third layers each comprise a third material (see col. 5, lines [57-59]: “intermediate layers 52 of matted material, synthetic or organic, such as cotton or wool fibers, polyester, or hybrid material mats”), the first material being different from the second material and the third material and the second material being different from the first material and the third material (each of the several layers with material options as disclosed by Barman above may result in different materials from each other in construction). Regarding claim 22, Barman teaches all the limitations as described in the above rejection of claim 21, and additionally teaches: wherein the first material is a heat and moisture wicking fabric (see col. 6, lines [40-43], cotton or silk fibers as disclosed would be capable of some degree of heat and moisture wicking), the second material is a filter fabric (see col. 5, lines [59-64]: “Extra material layers 53 may also be used, such as woven cotton, wool or synthetic cloth or hybrids thereof, or sheet materials such as plastic films, solid or perforated, which may serve as moisture barriers, aeration promoters, liners, or flame or heat retarders.” At least use of a perforated film may be considered a “filter fabric”) and the third material is a cushioning material (see col. 5, lines [57-59]: “intermediate layers 52 of matted material, synthetic or organic, such as cotton or wool fibers, polyester, or hybrid material mats” The disclosed materials of the third layer are capable of providing cushioning). Regarding claim 23, Barman teaches all the limitations as described in the above rejection of claim 22, and additionally teaches: wherein the second material is configured to reduce movement of particles through the panels and into the inner cavity (see col. 5, lines [59-64]: “Extra material layers 53 may also be used, such as woven cotton, wool or synthetic cloth or hybrids thereof, or sheet materials such as plastic films, solid or perforated, which may serve as moisture barriers, aeration promoters, liners, or flame or heat retarders.” Barrier layers or liners would reduce movement of particles or fibers thru the panels). Regarding claim 24, Barman teaches all the limitations as described in the above rejection of claim 21, and additionally teaches: wherein the first material is a fabric having a cool touch feel (see col. 6, lines [40-43], at least the use of ‘silk fibers’ would permit a cool touch feel), the second material is a filter fabric (see col. 5, lines [59-64]: “Extra material layers 53 may also be used, such as woven cotton, wool or synthetic cloth or hybrids thereof, or sheet materials such as plastic films, solid or perforated, which may serve as moisture barriers, aeration promoters, liners, or flame or heat retarders.” At least use of a perforated film may be considered a “filter fabric”) and the third material is a cushioning material (see col. 5, lines [57-59]: “intermediate layers 52 of matted material, synthetic or organic, such as cotton or wool fibers, polyester, or hybrid material mats” The disclosed materials of the third layer are capable of providing cushioning). Regarding claim 25, Barman teaches all the limitations as described in the above rejection of claim 21, and additionally teaches: wherein the first material is a fabric having a warm touch feel (see col. 6, lines [40-43], at least the use of ‘cotton fibers’ would permit a warm touch feel), the second material is a filter fabric (see col. 5, lines [59-64]: “Extra material layers 53 may also be used, such as woven cotton, wool or synthetic cloth or hybrids thereof, or sheet materials such as plastic films, solid or perforated, which may serve as moisture barriers, aeration promoters, liners, or flame or heat retarders.” At least use of a perforated film may be considered a “filter fabric”) and the third material is a cushioning material (see col. 5, lines [57-59]: “intermediate layers 52 of matted material, synthetic or organic, such as cotton or wool fibers, polyester, or hybrid material mats” The disclosed materials of the third layer are capable of providing cushioning). Regarding claim 26, Barman teaches all the limitations as described in the above rejection of claim 21, and additionally teaches: wherein the first material is a moisture dispersing material (see col. 6, lines [40-43], at least the use of ‘cotton or silk fibers’ would allow for dispersion of moisture over a completely solid layer), the second material is a filter fabric (see col. 5, lines [59-64]: “Extra material layers 53 may also be used, such as woven cotton, wool or synthetic cloth or hybrids thereof, or sheet materials such as plastic films, solid or perforated, which may serve as moisture barriers, aeration promoters, liners, or flame or heat retarders.” At least use of a perforated film may be considered a “filter fabric”) and the third material is a cushioning material (see col. 5, lines [57-59]: “intermediate layers 52 of matted material, synthetic or organic, such as cotton or wool fibers, polyester, or hybrid material mats” The disclosed materials of the third layer are capable of providing cushioning). Regarding claim 27, Barman teaches all the limitations as described in the above rejection of claim 21, and additionally teaches: wherein the first material is a breathable material (see col. 6, lines [40-43], at least the use of ‘cotton or silk fibers’ may be considered breathable materials), the second material is a filter fabric (see col. 5, lines [59-64]: “Extra material layers 53 may also be used, such as woven cotton, wool or synthetic cloth or hybrids thereof, or sheet materials such as plastic films, solid or perforated, which may serve as moisture barriers, aeration promoters, liners, or flame or heat retarders.” At least use of a perforated film may be considered a “filter fabric”) and the third material is a cushioning material (see col. 5, lines [57-59]: “intermediate layers 52 of matted material, synthetic or organic, such as cotton or wool fibers, polyester, or hybrid material mats” The disclosed materials of the third layer are capable of providing cushioning). Regarding claim 29, Barman teaches all the limitations as described in the above rejection of claim 21, and additionally teaches: wherein the second material is a filter fabric (see col. 5, lines [59-64]: “Extra material layers 53 may also be used, such as woven cotton, wool or synthetic cloth or hybrids thereof, or sheet materials such as plastic films, solid or perforated, which may serve as moisture barriers, aeration promoters, liners, or flame or heat retarders.” At least use of a perforated film may be considered a “filter fabric”) and the third material is a cushioning material (see col. 5, lines [57-59]: “intermediate layers 52 of matted material, synthetic or organic, such as cotton or wool fibers, polyester, or hybrid material mats” The disclosed materials of the third layer are capable of providing cushioning) and the first material is selected from the group consisting of polyester, 100% polyester, polyester and polyethylene, nylon, acrylic, acetate, cotton, linen, silk, polyester, wool, nylon, rayon, spandex, lycra, hemp, and blends thereof (see col. 6, lines [40-43], at least the use of ‘cotton or silk fibers’ are disclosed). Regarding claim 31, Barman teaches all the limitations as described in the above rejection of claim 21, and additionally teaches: further comprising a temperature-adjustment material applied to at least one of the third layers (see col. 5, lines [64-67] thru col. 6, lines [1-13]: use of “encapsulated gels” is disclosed as a special material layer for therapeutic purposes). Regarding claim 32, Barman teaches all the limitations as described in the above rejection of claim 31, and additionally teaches: wherein the temperature- adjustment material is a gel (see col. 6, lines [12-13]: “encapsulated gels” for use in the comfort layer). Regarding claim 34, Barman teaches all the limitations as described in the above rejection of claim 21, and additionally teaches: wherein each of the panels comprises the first layer, the second layer, and the third layer (see Fig. 2A, panels are mirror on top and bottom with similar structure sandwiching the core 51). Regarding claim 35, Barman teaches all the limitations as described in the above rejection of claim 21, and additionally teaches: wherein the first panel has a porosity that is different than a porosity of the second panel (as a variance in the specific composition of first/second/third layers may differ between upper and lower panels, given multiple alternative material options are disclosed, the porosity would vary accordingly). Regarding claim 36, Barman teaches all the limitations as described in the above rejection of claim 21, and additionally teaches: wherein the panels are joined by a gusset (see Fig. 2A-C, upper and lower tape seam 54 which defines side wall portion [58]). Regarding claim 37, Barman teaches all the limitations as described in the above rejection of claim 21, and additionally teaches: wherein the panels are joined by a gusset that perimetrically bounds the panels (see Fig. 2A-C, upper and lower tape seam 54 which defines side wall portion [58]). Regarding claim 38, Barman teaches all the limitations as described in the above rejection of claim 21, and additionally teaches: wherein the panels are joined by a gusset (see Fig. 2A-C, upper and lower tape seam 54 which defines side wall portion [58]), the gusset being in the form of patches located on the panels (see col. 6, lines [27-33]: “sewn with stitches in a quilted pattern” As per Fig. 2A, stitches extend to side wall 58 it would also be stitched in a quilted pattern. The Examiner notes that a quilted pattern as commonly understood, forms ‘patches’). Regarding claim 39, Barman teaches: A bed cover (see Fig. 2A, sleep system 10) comprising joined first and second panels (see Fig. 2A-C, upper and lower panels of upholstery 56 joined by upper and lower tape seams 54, see also col. 6, lines [30-34]), at least one of the panels comprising a first layer (see Fig. 2A-C and 3, upholstery layer 55/56/57), a second layer (see Fig. 2A-C, material layers 53) and a third layer (see Fig. 2C, matted layer 52), the third layers defining an inner cavity (see Fig. 2C, each 52 defines an inner cavity in which core layer 51 is placed), the first layers defining an outermost surface of the cover (see Fig. 2A-C, exterior surface of 56), wherein the first layers each comprise a first material (see col. 6, lines [40-43]: “woven strands of fibers such as woven cotton thread or combinations”), the second layers each comprise a second material (see col. 5, lines [59-64]: “Extra material layers 53 may also be used, such as woven cotton, wool or synthetic cloth or hybrids thereof, or sheet materials such as plastic films, solid or perforated, which may serve as moisture barriers, aeration promoters, liners, or flame or heat retarders”) and the third layers each comprise a third material (see col. 5, lines [57-59]: “intermediate layers 52 of matted material, synthetic or organic, such as cotton or wool fibers, polyester, or hybrid material mats”), the first material being different from the second material and the third material and the second material being different from the first material and the third material (each of the several layers with material options as disclosed by Barman above may result in different materials from each other in construction), wherein the panels are joined by a gusset that perimetrically bounds the panels (see Fig. 2A-C, upper and lower tape seam 54 which defines side wall portion [58]), wherein the first material is a heat and moisture wicking fabric (see col. 6, lines [40-43], cotton or silk fibers as disclosed would be capable of some degree of heat and moisture wicking), the second material is a filter fabric (see col. 5, lines [59-64]: “Extra material layers 53 may also be used, such as woven cotton, wool or synthetic cloth or hybrids thereof, or sheet materials such as plastic films, solid or perforated, which may serve as moisture barriers, aeration promoters, liners, or flame or heat retarders.” At least use of a perforated film may be considered a “filter fabric”) and the third material is a cushioning material (see col. 5, lines [57-59]: “intermediate layers 52 of matted material, synthetic or organic, such as cotton or wool fibers, polyester, or hybrid material mats” The disclosed materials of the third layer are capable of providing cushioning) Regarding claim 40, Barman teaches: A bed cover (see Fig. 2A, sleep system 10) comprising joined first and second panels (see Fig. 2A-C, upper and lower panels of upholstery 56 joined by upper and lower tape seams 54, see also col. 6, lines [30-34]), at least one of the panels comprising a first layer (see Fig. 2A-C and 3, upholstery layer 55/56/57), a second layer (see Fig. 2A-C, material layers 53) and a third layer (see Fig. 2C, matted layer 52), the third layers defining an inner cavity (see Fig. 2C, each 52 defines an inner cavity in which core layer 51 is placed), the first layers defining an outermost surface of the cover (see Fig. 2A-C, exterior surface of 56), wherein the first layers each comprise a first material (see col. 6, lines [40-43]: “woven strands of fibers such as woven cotton thread or combinations”), the second layers each comprise a second material (see col. 5, lines [59-64]: “Extra material layers 53 may also be used, such as woven cotton, wool or synthetic cloth or hybrids thereof, or sheet materials such as plastic films, solid or perforated, which may serve as moisture barriers, aeration promoters, liners, or flame or heat retarders”) and the third layers each comprise a third material (see col. 5, lines [57-59]: “intermediate layers 52 of matted material, synthetic or organic, such as cotton or wool fibers, polyester, or hybrid material mats”), the first material being different from the second material and the third material and the second material being different from the first material and the third material (each of the several layers with material options as disclosed by Barman above may result in different materials from each other in construction), wherein the panels are joined by a gusset (see Fig. 2A-C, upper and lower tape seam 54 which defines side wall portion [58]), the gusset being in the form of patches located on the panels (see col. 6, lines [27-33]: “sewn with stitches in a quilted pattern” As per Fig. 2A, stitches extend to side wall 58 it would also be stitched in a quilted pattern. The Examiner notes that a quilted pattern as commonly understood, forms ‘patches’) and wherein the first material is a heat and moisture wicking fabric (see col. 6, lines [40-43], cotton or silk fibers as disclosed would be capable of some degree of heat and moisture wicking), the second material is a filter fabric (see col. 5, lines [59-64]: “Extra material layers 53 may also be used, such as woven cotton, wool or synthetic cloth or hybrids thereof, or sheet materials such as plastic films, solid or perforated, which may serve as moisture barriers, aeration promoters, liners, or flame or heat retarders.” At least use of a perforated film may be considered a “filter fabric”) and the third material is a cushioning material (see col. 5, lines [57-59]: “intermediate layers 52 of matted material, synthetic or organic, such as cotton or wool fibers, polyester, or hybrid material mats” The disclosed materials of the third layer are capable of providing cushioning). 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. Claim(s) 28 is/are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent 6,715,173 to Barman in view of U.S. Patent 8,707,482 to Ramthun. Regarding claim 28, Barman teaches all the limitations as described in the rejection of claim 21, and additionally teaches the following: wherein the second material is a filter fabric (see col. 5, lines [59-64]: “Extra material layers 53 may also be used, such as woven cotton, wool or synthetic cloth or hybrids thereof, or sheet materials such as plastic films, solid or perforated, which may serve as moisture barriers, aeration promoters, liners, or flame or heat retarders.” At least use of a perforated film may be considered a “filter fabric”) and the third material is a cushioning material (see col. 5, lines [57-59]: “intermediate layers 52 of matted material, synthetic or organic, such as cotton or wool fibers, polyester, or hybrid material mats” The disclosed materials of the third layer are capable of providing cushioning). Barman does not teach: wherein the first material is a waterproof material. Ramthun teaches: wherein the first material is a waterproof material (see Ramthun, Fig. 1-5, upper panel [40] is formed to be waterproof, see col. 3, lines [41-44]). Barman and Ramthun are considered to both be the same field of endeavor, mattress coverings, as the claimed invention. Before the effective filing date of the claimed in invention it would have been obvious for one of ordinary skill in the art to have modified the upholstery layer of Barman to be waterproof as taught by Ramthun in order to prevent moisture intrusion into further layers of Barman below the upholstery layer since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416. See also Ballas Liquidating Co. v. Allied industries of Kansas, Inc. (DC Kans) 205 USPQ 331. Claim(s) 30 is/are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent 6,715,173 to Barman in view of U.S. Patent 1,533,973 to Cohen et al. (hereinafter Cohen). Regarding claim 30, Barman teaches all the limitations as described in the rejection of claim 21, however it does not teach the following: wherein a waterproof finish is applied to at least one of the first layers. Cohen teaches: wherein a waterproof finish is applied to at least one of the first layers (see Cohen, Page 2, lines [23-27]: “and a layer of rubber in the form of a coating upon and suitably incorporated with the outer face of one side of said quilted material”). Barman and Cohen are considered to both be the same field of endeavor, mattress coverings pads and protectors, as the claimed invention. Before the effective filing date of the claimed in invention it would have been obvious for one of ordinary skill in the art to have modified the top most upholstery layer of Barman to include a waterproof finish/coating (rubber coating of Cohen), to provide a bed covering having all the advantages of a soft cushion for use…in addition to waterproof qualities, wherever to the necessity for a soft cushion or layer of material is added the requirement to avoid injury due to the presence of liquid (see Cohen, page 1, lines [24-30]). Claim(s) 33 is/are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent 6,715,173 to Barman in view of U.S. Patent 6,922,862 to Thompson. Regarding claim 33, Barman teaches all the limitations as described in the rejection of claim 31, however it does not teach the following: wherein the temperature- adjustment material is neoprene. Thompson teaches: wherein the temperature-adjustment material is neoprene (see Thompson, col. 5, lines [39-40]: “neoprene pads”). Barman and Thompson are considered to both be the same field of endeavor of mattress toppers, as is the claimed invention. Before the effective filing date of the claimed in invention it would have been obvious for one of ordinary skill in the art to have modified a lower layer of Barman to include neoprene material as disclosed by Thompson since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416. See also Ballas Liquidating Co. v. Allied industries of Kansas, Inc. (DC Kans) 205 USPQ 331. Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The cited patents show mattress coverings, toppers, and pads with similar properties to the claimed invention. They show the general state of the art and are of general relevance with respect to the claimed subject matter. Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAVID R HARE whose telephone number is (571)272-4420. The examiner can normally be reached MON-FRI 8:00 AM-5:00 PM EST. 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. Sincerely, /DAVID R HARE/Primary Examiner, Art Unit 3673 6/24/2026
Read full office action

Prosecution Timeline

Apr 17, 2025
Application Filed
Jun 26, 2026
Non-Final Rejection mailed — §102, §103, §DOUBLEPATENT (current)

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Prosecution Projections

1-2
Expected OA Rounds
68%
Grant Probability
99%
With Interview (+32.4%)
2y 8m (~1y 4m remaining)
Median Time to Grant
Low
PTA Risk
Based on 618 resolved cases by this examiner. Grant probability derived from career allowance rate.

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