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 .
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 21, 24-26, 28 and 31-36 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 6, 7, 9, 14, 16, 19 and 24-27 of U.S. Patent No. 12,336,635. Although the claims at issue are not identical, they are not patentably distinct from each other because the broader limitations of claims 21, 24-26, 28, 31-36 in the application are disclosed by the claimed limitations of the patent.
Election/Restriction
This application contains claims directed to the following patentably distinct species A fig.1; B fig. 2A-2F; C fig. 3A-3F; D fig. 4A-4D; E fig. 5A-5D; F fig. 6A-6D; G fig. 7A-7D; F fig. 8A-8B; I fig. 9A-9B; and J fig. 10A-10B. The species are independent or distinct because the different species have mutually exclusive characteristics for each identified species. In addition, these species are not obvious variants of each other based on the current record.
Applicant is required under 35 U.S.C. 121 to elect a single disclosed species, or a single grouping of patentably indistinct species, for prosecution on the merits to which the claims shall be restricted if no generic claim is finally held to be allowable. Currently, no claims are generic.
There is a serious search and/or examination burden for the patentably distinct species as set forth above because at least the following reason(s) apply: The species are materially distinct, reflecting different structural arrangements and technical features. Prior art that discloses the invention of species A may not disclose the structural arrangement of species F.
Applicant is advised that the reply to this requirement to be complete must include (i) an election of a species to be examined even though the requirement may be traversed (37 CFR 1.143) and (ii) identification of the claims encompassing the elected species or grouping of patentably indistinct species, including any claims subsequently added. An argument that a claim is allowable or that all claims are generic is considered nonresponsive unless accompanied by an election.
The election may be made with or without traverse. To preserve a right to petition, the election must be made with traverse. If the reply does not distinctly and specifically point out supposed errors in the election of species requirement, the election shall be treated as an election without traverse. Traversal must be presented at the time of election in order to be considered timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are added after the election, applicant must indicate which of these claims are readable on the elected species or grouping of patentably indistinct species.
Should applicant traverse on the ground that the species, or groupings of patentably indistinct species from which election is required, are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing them to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the species unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other species.
Upon the allowance of a generic claim, applicant will be entitled to consideration of claims to additional species which depend from or otherwise require all the limitations of an allowable generic claim as provided by 37 CFR 1.141.
During a telephone conversation with Stuart Nelson on 09/23/2026 a provisional election was made without traverse to prosecute the invention of species F figs.8A-8B, claims 21-36. Affirmation of this election must be made by applicant in replying to this Office action. Claims 37-40 are withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected invention. Claims 27 and 30 are additionally withdrawn from consideration for being drawn to non-elected species A fig.1. Species A discloses the structure of a fabric layer 120 that can be made of a non-stretch fabric. The limitation of a non-stretch fabric and third fabric is not disclosed in the elected species F.
Applicant is reminded that upon the cancelation of claims to a non-elected invention, the inventorship must be corrected in compliance with 37 CFR 1.48(a) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. A request to correct inventorship under 37 CFR 1.48(a) must be accompanied by an application data sheet in accordance with 37 CFR 1.76 that identifies each inventor by his or her legal name and by the processing fee required under 37 CFR 1.17(i).
The examiner has required restriction between product or apparatus claims and process claims. Where applicant elects claims directed to the product/apparatus, and all product/apparatus claims are subsequently found allowable, withdrawn process claims that include all the limitations of the allowable product/apparatus claims should be considered for rejoinder. All claims directed to a nonelected process invention must include all the limitations of an allowable product/apparatus claim for that process invention to be rejoined.
In the event of rejoinder, the requirement for restriction between the product/apparatus claims and the rejoined process claims will be withdrawn, and the rejoined process claims will be fully examined for patentability in accordance with 37 CFR 1.104. Thus, to be allowable, the rejoined claims must meet all criteria for patentability including the requirements of 35 U.S.C. 101, 102, 103 and 112. Until all claims to the elected product/apparatus are found allowable, an otherwise proper restriction requirement between product/apparatus claims and process claims may be maintained. Withdrawn process claims that are not commensurate in scope with an allowable product/apparatus claim will not be rejoined. See MPEP § 821.04. Additionally, in order for rejoinder to occur, applicant is advised that the process claims should be amended during prosecution to require the limitations of the product/apparatus claims. Failure to do so may result in no rejoinder. Further, note that the prohibition against double patenting rejections of 35 U.S.C. 121 does not apply where the restriction requirement is withdrawn by the examiner before the patent issues. See MPEP § 804.01.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 21-26, 28-29 and 31-36 is/are rejected under 35 U.S.C. 103 as being unpatentable over US Patent Publication US2020/0000241A1 hereinafter referred to as Jensen in view of US Patent Publication US2017/0020300A1 hereinafter referred to as Murphy.
Re-Claim 21
Jensen discloses a mattress cover 170 fig.10 configured to cover a mattress [0058] defined by a mattress top, a mattress bottom, and a mattress perimeter, the mattress cover comprising: a first fabric 172 fig.10 extending around four sides of the mattress perimeter at a bottom of the mattress perimeter; and a second fabric 174 fig.10 directly coupled to the first fabric, the second fabric extending across the mattress top and around the four sides of the mattress perimeter above the first fabric.
However does not explicitly disclose the mattress cover is configured to surround a mattress.
Murphy teaches a mattress cover 130 fig.5 comprising: a first fabric 140 fig.9 and a second fabric 141 fig.5 configured to surround a mattress 10, 11, 12 figs.1-3 [0117].
Accordingly, it would have been obvious to one of ordinary skill in the art before the invention was effectively filed to have combined the mattress cover of Jensen and the mattress cover surrounding a mattress of Murphy and with a reasonable expectation of success arrived at mattress cover surrounding a mattress. One of ordinary skill in the art would have been motivated to make such a combination for the purpose of having a mattress cover that completely surrounds the mattress as taught in Murphy [0117]. Re-Claim 22
Jensen as modified by Murphy above discloses,
Jensen discloses wherein the first fabric is directly coupled to the first fabric with no zipper between the first fabric and the second fabric [0064].
Re-Claim 23
Jensen as modified by Murphy above discloses,
Murphy teaches wherein the first fabric is sewn directly to the second fabric defining a seam on the mattress perimeter [0101].
Re-Claim 24
Jensen as modified by Murphy above discloses,
Jensen discloses wherein the second fabric comprises a 4-way stretch fabric [0059].
Re-Claim 25
Jensen as modified by Murphy above discloses,
Murphy teaches wherein the first fabric comprises a first 2-way stretch fabric [0092], the first 2-way stretch fabric having a stretch direction that is stretchable in a direction parallel to the mattress top and having limited or no stretch in a direction perpendicular to the mattress top (Murphy teaches it is well known that a knitted fabric inherently discloses a degree of stretch and that is possible to utilize a knitted cover having limited stretch).
Re-Claim 26
Jensen as modified by Murphy above discloses,
Murphy teaches wherein the first fabric comprises a fabric [0092] having limited stretch parallel along the sides of the mattress in a direction parallel to the mattress top and having limited or no stretch in a direction perpendicular to the mattress top, thereby providing stiffness and support for the mattress in the direction parallel to the mattress top (Murphy teaches it is well known that a knitted fabric inherently discloses a degree of stretch and that is possible to utilize a knitted cover having limited stretch).
Re-Claim 28
Jensen as modified by Murphy above discloses,
Murphy teaches wherein the first fabric extends across the mattress bottom (see fig.3 & 5).
Re-Claim 29
Jensen as modified by Murphy above discloses,
Jensen discloses wherein the second fabric extends entirely across the mattress top (see fig.10).
Re-Claim 31
Jensen as modified by Murphy above discloses,
Jensen discloses wherein the first fabric comprises a top edge having a portion parallel to the mattress top, and wherein the top edge further comprises another portion non-parallel to the mattress top (see profile in fig.10).
Re-Claim 32
Jensen as modified by Murphy above discloses,
Jensen discloses wherein the portion non-parallel to the mattress top comprises a curved portion with a middle of the curved portion being lower than adjacent parts of the curved portion (see profile in fig.10).
Re-Claim 33
Jensen as modified by Murphy above discloses,
Jensen discloses wherein the portion parallel to the mattress top comprises a first parallel section and a second parallel section, the portion non-parallel to the mattress top positioned between the first parallel section and the second parallel section (see profile in fig.10).
Re-Claim 34
Jensen as modified by Murphy above discloses,
Jensen discloses wherein the first parallel section and the second parallel section have a same height from the mattress top (see profile in fig.10).
Re-Claim 35
Jensen as modified by Murphy above discloses,
Jensen discloses wherein the portion parallel to the mattress top is positioned on a head side of the mattress, a left side of the mattress near the head side, and a right side of the mattress near the head side, and wherein the portion parallel to the mattress top positioned on the head side of the mattress, the left side of the mattress near the head side, and the right side of the mattress near the head side have a same height from the mattress top (see profile in fig.10).
Re-Claim 36
Jensen as modified by Murphy above discloses,
Jensen discloses wherein the portion parallel to the mattress top is positioned on a foot side of the mattress, a left side of the mattress near the foot side, and a right side of the mattress near the foot side, and wherein the portion parallel to the mattress top positioned on the foot side of the mattress, the left side of the mattress near the foot side, and the right side of the mattress near the foot side have a same height from the mattress top (see profile in fig.10).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See notice of references cited.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to IFEOLU A ADEBOYEJO whose telephone number is (571)270-3072. The examiner can normally be reached M-Th 10AM-5PM 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, Matthew Troutman can be reached at (571) 270-3654. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/IFEOLU A ADEBOYEJO/Examiner, Art Unit 3679
/Matthew Troutman/Supervisory Patent Examiner, Art Unit 3679
