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 .
Priority
Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c) is acknowledged. Applicant has not complied with one or more conditions for receiving the benefit of an earlier filing date under 35 U.S.C. 120 as follows:
The later-filed application must be an application for a patent for an invention which is also disclosed in the prior application (the parent or original nonprovisional application or provisional application). The disclosure of the invention in the parent application and in the later-filed application must be sufficient to comply with the requirements of 35 U.S.C. 112(a) or the first paragraph of pre-AIA 35 U.S.C. 112, except for the best mode requirement. See Transco Products, Inc. v. Performance Contracting, Inc., 38 F.3d 551, 32 USPQ2d 1077 (Fed. Cir. 1994).
The disclosure of the prior-filed application, Application No. 17/817,280 , fails to provide adequate support or enablement in the manner provided by 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph for one or more claims of this application. The claims are solely directed to the new subject matter disclosed in Figs. 3 and 4. Therefore, the effective filing date of the instant application is June 4th, 2025.
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 3 is 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. Applicant’s Claim 3 is directed toward the “first support structure” being a triangular truss apparatus, a pyramidal truss apparatus, or a plurality of vertical beams which is shown in the embodiments disclosed in Figs. 1, 2, and 3, respectively. The support structure shown in Fig. 3 are 3 “vertical beams” going from the top frame structure (302) to the axle (310), as described in para. [0033] and shows the pitch axle and pillow block bearings located at a position which is in a range between 51 percent and 58 percent of a length of the top frame structure. Figs. 1 shows a pitch axle 20 and pillow block bearings 60,70 located centrally, i.e. at 50 percent of the length of the top frame structure. Fig. 2 shows a ball and socket joint 240 located centrally and a pyramidal support structure, and notably does not contain a pitch axle or pillow block bearings. Applicant’s para. [0028] envisions Fig. 2 with a pitch axle and pillow block bearings, but this is not an adequate disclosure. Moreover, the only embodiment described with the claimed positioning of the pitch axle and the pillow block bearings is in relation to Fig. 3 (see para. [0033]). While Applicant has shown adequate possession for the “plurality of beams” in claim 3, they have not shown adequate possession for the pitch axle and pillow block bearings located at a position which is in a range between 51 percent and 58 percent of a length of the top frame structure with a first support structure being a triangular truss apparatus or a pyramidal truss apparatus,. “There is a presumption that an adequate written description of the claimed invention is present in the specification as filed, Wertheim, 541 F.2d at 262, 191 USPQ at 96, thus the examiner has the initial burden, after a thorough reading and evaluation of the content of the application, of presenting evidence or reasons why a person skilled in the art would not recognize the written description of the invention as providing adequate support for the claimed invention. To make a prima facie case, it is necessary to identify the claim limitations that are not adequately supported, and explain why the claim is not fully supported by the disclosure. For example, in Hyatt v. Dudas, 492 F.3d 1365, 1371, 83 USPQ2d 1373, 1376-1377 (Fed. Cir. 2007), the examiner made a prima facie case by clearly and specifically explaining why applicant’s specification did not support the particular claimed combination of elements, even though applicant’s specification listed each and every element in the claimed combination.” See MPEP 2163(II)(A).
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.
Claim 3 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 3 recites the limitation " wherein the first support structure is a triangular truss apparatus, a pyramidal truss apparatus, or a plurality of vertical beams." “A claim, although clear on its face, may also be indefinite when a conflict or inconsistency between the claimed subject matter and the specification disclosure renders the scope of the claim uncertain as inconsistency with the specification disclosure or prior art teachings may make an otherwise definite claim take on an unreasonable degree of uncertainty. In re Moore, 439 F.2d 1232, 1235-36, 169 USPQ 236, 239 (CCPA 1971); In re Cohn, 438 F.2d 989, 169 USPQ 95 (CCPA 1971); In re Hammack, 427 F.2d 1378, 166 USPQ 204 (CCPA 1970).” See MPEP 2173.03. Claim 3 is directed toward the “first support structure” being a triangular truss apparatus, a pyramidal truss apparatus, or a plurality of vertical beams which is shown in the embodiments disclosed in Figs. 1, 2, and 3, respectively. The support structure shown in Fig. 3 are 3 “vertical beams” going from the top frame structure (302) to the axle (310), as described in para. [0033] and shows the pitch axle and pillow block bearings located at a position which is in a range between 51 percent and 58 percent of a length of the top frame structure, as now required by parent Claim 1. Fig. 1 shows a pitch axle 20 and pillow block bearings 60,70 located centrally, i.e. at 50 percent of the length of the top frame structure. Fig. 2 shows a ball and socket joint 240 and does not contain a pitch axle or pillow block bearings. Para. [0022] states that “the support structure may be a triangular truss apparatus or pyramidal truss apparatus” as also shown in Figs. 1 and 2, respectively. Para. [0023] states “the bottom frame structure may be a triangular frame structure” as shown in Fig. 3. With further reference to Fig. 3, para. [0033] states “[w]hen the bed’s top frame 302 is resting on the flat bottom frame through the vertical beams connecting to the pitch axle and when someone is lying on the bed, the longer beams of the bottom frame that are perpendicular to the pitch axle, arch upwards on the ends. This arching of the bottom frame makes the bed unstable. Making the pitch axle rest on triangular frame structure 304 of the bottom frame as shown in Figure 3 prevents arching of the bottom frame.” It is apparent from the disclosure as a whole that the first support structure, as claimed and reflected by Fig. 3, is not intended to be “a triangular truss apparatus or pyramidal truss apparatus”, but instead “vertical beams”. The requirement of a bottom frame structure being triangular appears to be mutually exclusive from the support structure being a triangular truss apparatus or a pyramidal truss apparatus, i.e. the intended function of the bottom frame structure being triangular may be lost if the support structure is a triangular truss apparatus or a pyramidal truss apparatus. See below illustrations that indicate what is currently being claimed by Claim 3 and is not clearly explained in the specification.
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For prior art examination purposes, Examiner is interpreting Claim 3 as —wherein the first support structure is a plurality of vertical beams—.
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) ) 1-3 and 5-7 is is/are rejected under 35 U.S.C. 103 as being unpatentable over Fraisse (FR 2899098).
Regarding Claim 1, Fraisse discloses a rocking bed comprising:
a top frame structure (A) capable of holding a mattress (B), connecting to a first support structure (S) resting on a pitch axle (5) pivoting between two pillow block bearings (6);
a bottom frame structure (P) housing a motor (M) and connecting to a crank (12) and a shaft (11), wherein the crank and shaft initiates linear motion when the motor is engaged, pitching the top frame structure up and down (“ oscillation movement in a horizontal plane between two angular positions considered on either side of a neutral horizontal position”, see English translation), wherein the pitch axle and the pillow block bearings are located at a position which is greater than 51 percent of a length of the top frame structure (see location of 5 in Figs. 1 and 2, which skews more toward the head of the bed).
Fraisse fails to explicitly disclose wherein the pitch axle and the pillow block bearings are located at a position which is in a range between 51 percent and 58 percent of the length of the top frame structure, but generally discloses the pitch axle and the pillow block bearings at a location favoring the head side of the bed (compare location of flanges 7 in Fig.1 to location of flanges 7 in Fig. 2, as the joint from the head/seat section of the bed is located almost directly above the axle 5) . Applicant fails to assign any sort of criticality to the aforementioned range, other than motor power is reduced when the axis is located favoring one side, i.e. off-centered. Applicant further alleges that “the center of gravity of a human body is 55 to 58% of the height measured from the feet” in para. [0020], which ties the location of the axle and block bearings to the variable proportions/sizes of a human. Furthermore, 51-54% lies outside of this alleged standard. It would have been obvious to one having ordinary skill in the art at the time the invention was filed to make the pitch axle and the pillow block bearings located at a position which is in a range between 51 percent and 58 percent of the length of the top frame structure since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Regarding Claim 2, Fraisse discloses wherein the motor is a linear actuator capable of converting rotary motion to linear motion to pitch said top frame structure up and down (see Figs. 2 and 3).
Regarding Claim 3, Fraisse discloses wherein the first support structure is a plurality of vertical beams (see 7 in Fig. 6).
Regarding Claim 5, Fraisse discloses wherein the bottom frame structure is a triangular frame structure (see Fig. 2).
Regarding Claim 6, Fraisse discloses a damping mechanism (10 or 13) connected between the first support structure and the bottom frame structure.
Regarding Claim 7, Fraisse discloses wherein the damping mechanism is a shock absorber (10 or 13), a torsion bar, or a strut.
Response to Arguments
Applicant's arguments filed September 23rd, 2026 have been fully considered but they are not persuasive.
Regarding Applicant’s argument that The truss alternatives are also supported, because the rejections rest on a premise that the claims do not bear out. The Office Action reads claim 3 as combining the truss support structure of FIGS. 1 and 2 with the triangular bottom frame structure of FIG. 3. Claim 3, however, depends from claim 1 alone, and neither claim recites a triangular bottom frame structure. That feature appears only in claim 5, which the Office Action describes as "properly claimed." Claims 3 and 5 are parallel dependent claims, and no pending claim requires both a truss support structure and a triangular bottom frame structure. The structure illustrated on page 9 of the Office Action is therefore not claimed. — Examiner respectfully disagrees. Currently amended Claim 1 requires “wherein the pitch axle and the pillow block bearings are located at a position which is in a range between 51 percent and 58 percent of a length of the top frame structure”. Fig. 1 shows a pitch axle 20 and pillow block bearings 60,70 located centrally, i.e. at 50 percent of the length of the top frame structure 10 with a triangular truss structure. Fig. 2 shows a ball and socket joint 240 located centrally and a pyramidal support structure, and notably does not contain a pitch axle or pillow block bearings. Applicant’s para. [0028] envisions Fig. 2 with a pitch axle and pillow block bearings, but this is not an adequate disclosure. Moreover, the only embodiment described with the claimed positioning of the pitch axle and the pillow block bearings is in relation to Fig. 3 (see para. [0033]). Applicant’s Claim 3 optionally requiring a triangular truss apparatus or a pyramidal truss apparatus, while also requiring a pitch axle and pillow block bearings that are located at a position which is in a range between 51 percent and 58 percent of a length of the top frame structure as required in parent claim 1, is not supported by the originally filed disclosure.
Regarding Applicant’s argument that the drawings of Fraisse are not drawn to scale, as no scale or dimensions are provided. That is, Fraisse does not provide dimension, ratio, or scale, and when a reference does not disclose that its drawings are to scale and is silent as to dimensions, arguments based on measurement of the drawings are of little value. Hockerson-Halberstadt, Inc. v. Avia Group Int'l, Inc., 222 F.3d 951, 956, 55 USPQ2d 1487, 1491 (Fed. Cir. 2000); MPEP §2125. FIG. 1 of Fraisse is a perspective view, in which lengths are foreshortened, and FIG. 2 is a partial section in which both ends of the support are broken away, so that the length of the top frame cannot be determined from it. — Examiner respectfully disagrees. MPEP § 2125 further states that “The drawings must be evaluated for what they reasonably disclose and suggest to one of ordinary skill in the art. In re Aslanian, 590 F.2d 911, 200 USPQ 500 (CCPA 1979).” Fraisse’s Fig. 1 and Fig. 2 are reproduced below. The line drawn by the Examiner through Fig. 1 is roughly the same location of the line drawn by the Examiner through Fig. 2. Fig. 2 is merely a section of Fig. 1, and the location of elements in Fig. 2 can be compared and contrasted with Fig. 1 by one of ordinary skill to determine that the axle 5 favors the head of the bed, i.e. the axle is located along a length greater than 51% of the length of the bed.
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Regarding Applicant’s argument that In Fraisse, the pivot arrangement is reversed. Cross member 4 is fixed through elastic studs 1 between the tubular profiles 2a and 2b of the stationary base P (page 6, line 25 to page 7, line 2). A separate axis 5 is secured to each end of cross member 4, and each axis 5 is received in a damping bearing 6 fixed to a lateral flange 7 of the oscillating support S (page 7, lines 11 to 16; FIG. 4). The axes 5 therefore do not pivot; they are stub axles rigidly secured to a cross member that is fixed to the base, and it is the support S, carrying its own bearings, that turns about them. Fraisse also describes its bearings 6 only as noise damping bearings fixed to the flanges of the support (page 4, lines 8 to 12) and does not describe pillow block bearings, which are bearings carried in a housing having a base for mounting to a supporting surface, as shown by bearings 60 and 70 in FIG. 1 of the present application. A generic disclosure of bearings does not describe the particular bearing claimed. — Examiner respectfully disagrees. Fraisse describes the axes 5 as follows:
Each axis is mounted in damping bearings (6) integral with the support (S). For example, these damping bearings (6) are fixed on lateral flanges (7) of the support. These flanges (7) may be profiled and have a flat bearing surface or in different angular structures for receiving in support, possibly in combination with attachment systems, the bed base.
The axes 5 pivot in relation to the two bearings 6, as denoted by translated Claim 6 of Fraisse, i.e. “characterized in that the oscillation arrangements that the crosspiece (4), are constituted by pins (5) integral with said crossbar (4) and mounted in bearings (6) dampers of interlocking sounds of the lateral flanges (7) of the support.” Moreover, Fraisse refers to 5 as a “pivot axes” in the 6th to last line on page 4 of the English Translation. In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the some of the features upon which applicant relies (i.e., bearings carried in a housing having a base for mounting to a supporting surface, as shown by bearings 60 and 70 in FIG. 1 of the present application) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Regarding Applicant’s argument that Nor does Fraisse recognize the relationship on which the claimed range is based. The present specification explains that the motor power needed to produce pitch motion is very high when the pitch axis is located at the midpoint of the bed, and lower when the axis is displaced toward the head of the bed in relation to the center of gravity of the user (paragraph [0020]). Fraisse describes offsetting its flanges only to compensate for differences in mass between the upper and lower parts of the user; it gives no direction or magnitude for the offset and does not relate the pivot location to the length of the top frame structure or to the power required of the motor (page 8, lines 23 to 27). The observation in the Office Action that the center of gravity varies with human proportions does not supply a reason, found in the prior art, to arrive at the claimed range. Applicant therefore submits that amended claim 1 is not obvious over Fraisse — Examiner respectfully disagrees. As previously stated in the rejection under 35 USC 103(a) above, Applicant has not established criticality for the aforementioned range, other than motor power is reduced when the axis is located favoring one side, i.e. off-centered. Applicant further alleges that “the center of gravity of a human body is 55 to 58% of the height measured from the feet” in para. [0020], which ties the location of the axle and block bearings to the variable proportions/sizes of a human. Not all humans have the same center of gravity to weight properties, and Applicant has not shown any data or cited any studies showing the relationship of center of gravity of a human to height. For example, would a double arm amputee or a person with longer than average legs still reflect the statement that “the center of gravity of a human body is 55 to 58% of the height measured from the feet”? Furthermore, 51-54% lies outside of this alleged standard. Applicant states in the specification that a position of the pitch axle and block bearings located at a distance of 55-58% of bed length reduces the motor power required to produce pitch motion, however Applicant is also including a range of 51-54% within the claimed range. Applicant can show that the range is critical as outlined in MPEP 2144.05(III)(A-D). In order to demonstrate criticality of a claimed range, Applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960). See MPEP 716.02(D)(II),
Conclusion
THIS ACTION IS MADE FINAL. 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 ERIC J KURILLA whose telephone number is (571)270-7294. The examiner can normally be reached Monday-Thursday 7AM-6PM.
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, Anita Coupe can be reached at 571-270-3614. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ERIC J KURILLA/Primary Examiner, Art Unit 3619
