DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Status of the Application
Claims 1-3, 8, 14-15, and 21-34 have been examined in this application. Claims 4-7, 9-13, and 16-20 have been canceled. Claims 21-34 are newly added. This communication is a Final Rejection in response to Applicant’s “Amendments/Remarks” filed 8/7/2026.
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.
Claim 28 recites: “means for securing the temperature layer to a mattress” which invokes 112f and will be interpreted in line with Specification paragraph [0010]: “ In one embodiment, the conditioner mat is configured to releasably (e.g., using straps, hook-and-loop connections, buttons, zippers, other fasteners, etc.) or permanently secure to a top of a bed assembly,” paragraph [0013]: “The topper member additionally includes one or more securement devices (e.g., straps, elastic bands, buttons, zippers, clip or other fasteners, etc.) for at least temporarily securing the topper member to a medical bed,” or paragraph [0073].
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 26 rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Claim 26 (new) recites a combination of attachment methods (which appears to require all elements simultaneously present along side each other based on the claim). Specifically, claim 26 recites: “one or more friction surfaces, at least one strap, elastic, at least one hook-and-loop fastener, at least one zipper, and at least one strap connection” however, it does not appear the specification nor drawings provide explicit support for all of these elements to be used together/simultaneously. These elements appear to be alternatively used to secure the topper to a mattress. As such, further clarification is requested by the Examiner.
For purposes of examination, the examiner will interpret the claim to require only one of the alternative fastening members recited in claim 26.
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 26-34 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 26 rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being incomplete for omitting essential structural cooperative relationships of elements, such omission amounting to a gap between the necessary structural connections. See MPEP § 2172.01. The omitted structural cooperative relationships are: the location and position of the following attachment elements with respect to other structures present in claim 26. Essentially the plurality of attachment methods (all seemingly required in the claim together): “one or more friction surfaces, at least one strap, elastic, at least one hook-and-loop fastener, at least one zipper, and at least one strap connection” are recited in isolation with respect to each other or from any relationship to other elements in the claim and as such, one of ordinary skill in the art would not understand the structural cooperative relationship of the elements.
Claims 27-29 are additionally rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph as being dependent upon a rejected base claim (claim 26).
Claim 30 recites the limitation "a cutout of internal layer material” in line 11. There is insufficient antecedent basis for this limitation in the claim. It is unclear whether the recited internal layer material (of which a cutout is located in) is in fact the same “material” that is introduced earlier (“a material positioned between the upper layer and the lower layer”) or a new/distinct material from that first material. Further clarification is requested.
Claims 31-34 are additionally rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph as being dependent upon a rejected base claim (claim 30).
Claim Rejections - 35 USC § 103
The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim 26-29 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over U.S. Patent Application Publication 2003/0145380 to Schmid in view of U.S. Patent Application Publication 2007/0261548 to Vrzalik et al. (hereinafter Vrzalik).
Regarding claim 26 (as best understood), Schmid teaches: A temperature layer for a mattress (see Schmid, Abstract: “furniture cover sheet”) comprising:
an upper layer (see Fig. 1-2, upper layer 36);
a lower layer (see Fig. 1-2, lower layer 34) below the upper layer;
at least two fluid flow paths positioned between the upper layer and the lower layer (See Fig. 1-2, 4, air flow passages 32);
fluid permeable fabric (see Fig. 2, upper layer is “porus” per para [0041] from which air is released as shown);
one or more friction surfaces;
at least one strap;
elastic (see Fig. 2-3, elastic retainer 14);
at least one hook-and-loop fastener;
at least one zipper; and
at least one snap connection
Schmid does not explicitly teach the following: a material positioned between the upper layer and the lower layer, wherein the material is positioned between the at least two fluid flow paths to space adjacent fluid flow paths
Vrzalik teaches: a material positioned between the upper layer and the lower layer (see Fig. 3, spacer material 142 between upper 141 and lower 143 layers), wherein the material is positioned between the at least two fluid flow paths to space adjacent fluid flow paths (given the spacer material 142 is applied to the passages in Schmid, it would be positioned to also space the flow paths of Schmid).
Schmid and Vrzalik are both considered to be analogous to the claimed invention because they are the same field of temperature-controlled support devices configured to be attached to a mattress. Before the effective filing date of the claimed invention, it would have been obvious for one of ordinary skill in the art to have modified the teachings of Schmid with these aforementioned teachings of Vrzalik in order to add spacer material/foam as taught by Vrzalik into the air passages in Schmid with a reasonable expectation of success to further assist in support and removal of moisture to prevent decubitus ulcer formation (see Vrzalik, para [0043]).
Regarding claim 27, Schmid as modified teaches all the limitations as described in the rejection of claim 26, however, Schmid does not teach: wherein the material comprises foam defining a plurality of zones to separate fluid zones.
Vrzalik teaches: wherein the material comprises foam defining a plurality of zones to separate fluid zones (see para [0045]: “examples of such spacer materials include open cell foam”).
Regarding claim 28, Schmid as modified teaches all the limitations as described in the rejection of claim 26, and additionally teaches: further comprising means for securing the temperature layer to a mattress (see Fig. 2-3, elastic retainer 14).
Regarding claim 29, Schmid as modified teaches all the limitations as described in the rejection of claim 26, and additionally teaches: wherein the at least two fluid flow paths are configured to simultaneously receive a first fluid at a first temperature and a second fluid at a second temperature (see Fig. 5, use of two separate manifolds 18a/18b may provide air flow with different temperatures controlled by each separate air delivery unit 42 having its own heater 50).
Allowable Subject Matter
Claims 1-3, 8, 14-15, 21-25 are allowed.
Claims 30-34 would be allowable in view of the prior art upon obviation of the rejection of independent claim 30 under 35 U.S.C. 112(b) recited above and Double Patenting Rejection cited below.
Regarding independent claim 1, please review reasons for allowance stated in the Non-Final Rejection dated 5/19/2026. Although the scope of the claims has been amended, similarly stated reasons for allowance still apply to the updated independent claim 1.
Regarding independent claim 30, the closest prior art of record, namely Schmid (US 2003/0145380), Wu (US 2005/0011009), and Vrzalik (US 2007/0261548) do not teach or fairly disclose the claimed limitation of: wherein the temperature layer defines a cutout of internal layer material that is positioned in-between the upper layer and the lower layer at a middle portion of an edge of the temperature layer between two corners of the temperature layer, and wherein the cutout of the internal layer material is sized and shaped to receive both a fitting and at least a portion of a conduit within the cutout. Firstly, these references teach cutouts located primary on the corners and not at a middle portion of an edge as required. Secondly, these references to not teach a cutout of internal layer material.
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 30 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 15 of U.S. Patent No. U.S. Patent 12,303,445. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the instant invention are fully encompassed by the patented claim(s).
Claim 31 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. U.S. Patent 12,303,445.
Claim 33 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. U.S. Patent 12,303,445.
Claim 34 rejected on the ground of nonstatutory double patenting as being unpatentable over claim 3 of U.S. Patent No. U.S. Patent 12,303,445.
Response to Arguments
Applicant’s arguments, filed 8/7/2026, with respect to the rejection(s) of claim(s) 1-20 and 1-5 and 7-20 under Non-Statutory Double Patenting have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, new claim 26 required rejections under 35 U.S.C. 112(a), 35 U.S.C. 112(b), and art rejections in view of Schmid and Vrzalik as noted in detail above. Additionally new claims 30-34 are also rejected under 35 U.S.C. 112(b) and Obviousness Double Patenting rejections.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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.
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Sincerely,
/DAVID R HARE/Primary Examiner, Art Unit 3673
10/8/2026
