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 .
Specification
The abstract of the disclosure is objected to because the abstract includes terms in parenthesis. A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 16 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 16 recites the limitation "the other device" in line 1 of the claim. There is insufficient antecedent basis for this limitation in the claim.
Claim Rejections - 35 USC § 102
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 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) 1-2, 4, 7-13, 15 and 20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Blumberg U.S. Publication No. (2008/0052837 A1).
With respect to claim 1, Blumberg substantially discloses a method for treating a patient that is diagnosed as having, or is suspected of having, a respiratory illness [0068, The system may include a means for analyzing audio or vibrations to detect snoring. In response to such detection, the system may apply a program to the cells to encourage repositioning of the body or otherwise lessen the likelihood of continued snoring or increase the likelihood clear breathing or other desired physiological response], the method comprising:
orienting the patient [this step can be done by the patient himself or herself] in a prone position [0033, a person with excess weight can be aided by the by keeping the person's spine in a straight position. The system may accomplish this by lowering the pressure under the stomach when the person is sleeping on his/her stomach or by increasing the pressure under the lower back when the person is sleeping on his/her back. The goal is to keep the spine in a natural position which may be near a straight position with some customized curves depending on the individual's natural spine shape. Similarly, Individuals with Scoliosis can be aided immensely by relieving the pressure on their spine while they sleep] such that an anterior anatomical region [the person will be laying on their stomach or anterior anatomy] is located adjacent a pressure-mitigation device [the digital bed system, abstract] that has multiple inflatable chambers or cells (abstract) and [0022] and that is situated on a surface on which the patient is to be immobilized; and
causing a controller to independently pressurize the multiple inflatable chambers to varying degrees in accordance with a programmed pattern that is associated with the anterior anatomical region [0022], such that a force applied by the surface to the patient is shifted across the anterior anatomical region over time [0054, The system may also provide slow and small movement which may be imperceptible to the sleeper but which may augment the sleep experience by alleviating stagnant pressure over the hours of sleep and which may lessen the need for the sleeper to change positions during the course of the night].
With respect to claim 2, Blumberg discloses turning the patient [can be done by the patient] such that a posterior anatomical region is located adjacent the pressure-mitigation device in response to a notification, from the controller, that indicates the patient is to be turned in accordance with a treatment regimen [0043].
With respect to claim 4, Blumberg discloses the programmed pattern specifies, for each of the multiple inflatable chambers, (i) pressures to which that inflatable chamber is to be inflated and (ii) durations for which the pressures are to be maintained [0022].
With respect to claim 7, Blumberg inherently discloses the multiple inflatable chambers are initially pressurized to an inflated state, and wherein the programmed pattern causes the force to shift through controlled deflation of the multiple inflatable chambers [0022, the support cells, 120, is independently capable of increasing or decreasing in height from a common plane, firmness or pressure, tactile sensation (does the top feel squishy, like granite, like a pillowtop, etc--could have separate pneumatic system on top of the cell to control this), springiness, amount of hysteresis, dampening, range of motion (over what range is it springy), or size in response to commands issued by software on the controller, 200, to the support cells, 120, through the communications cabling, 210.].
With respect to claim 8, Blumberg discloses the anterior anatomical region is a thoracic region [0033, the patient is positioned on the stomach or anterior anatomy to which the thoracic is a part of the anterior anatomy of the body].
With respect to claim 9, Blumberg discloses the programmed pattern is alterable, in real time, to account for information obtained from another device that is used to treat the patient [0043] and [0067].
With respect to claim 10, Blumberg discloses a method for treating a patient that is diagnosed as having, or is suspected of having, a respiratory illness [0068, The system may include a means for analyzing audio or vibrations to detect snoring. In response to such detection, the system may apply a program to the cells to encourage repositioning of the body or otherwise lessen the likelihood of continued snoring or increase the likelihood clear breathing or other desired physiological response], the method comprising:
orienting the patient [this step can be done by the patient himself or herself] in a supine position [0033, a person with excess weight can be aided by the by keeping the person's spine in a straight position. The system may accomplish this by increasing the pressure under the lower back when the person is sleeping on his/her back. The goal is to keep the spine in a natural position which may be near a straight position with some customized curves depending on the individual's natural spine shape. Similarly, Individuals with Scoliosis can be aided immensely by relieving the pressure on their spine while they sleep] such that a posterior anatomical region [the person will be laying on their back or posterior anatomy] is located adjacent a pressure-mitigation device [the digital bed system, abstract] that has multiple inflatable chambers or cells (abstract) and [0022] and that is situated on a surface on which the patient is to be immobilized; and
causing a controller to independently pressurize the multiple inflatable chambers to varying degrees in accordance with a programmed pattern that is associated with the posterior anatomical region [0022], such that a force applied by the surface to the patient is shifted across the posterior anatomical region over time [0054, The system may also provide slow and small movement which may be imperceptible to the sleeper but which may augment the sleep experience by alleviating stagnant pressure over the hours of sleep and which may lessen the need for the sleeper to change positions during the course of the night].
With respect to claim 11, Blumberg discloses turning the patient [can be done by the patient] such that an anterior anatomical region is located adjacent the pressure-mitigation device in response to a notification, from the controller, that indicates the patient is to be turned in accordance with a treatment regimen [0043].
With respect to claim 12, Blumberg inherently discloses the programmed pattern is representative of a non-repeating algorithm that considers data indicative of pressure of each of the multiple inflatable chambers [the digital bed system of Blumberg is programmable, as such is capable of being programmed to perform the recited function].
With respect to claim 13, Blumberg discloses the posterior anatomical region is a sacral region [0033, the patient is positioned on the back or posterior anatomy to which the sacral region is a part of the posterior anatomy of the body].
With respect to claim 15, Blumberg discloses the programmed pattern is alterable, in real time, to account for information obtained from another device that is used to treat the patient [0043] and [0067].
With respect to claim 20, Blumberg discloses a method for treating a patient that is diagnosed as having, or is suspected of having, a respiratory illness illness [0068, The system may include a means for analyzing audio or vibrations to detect snoring. In response to such detection, the system may apply a program to the cells to encourage repositioning of the body or otherwise lessen the likelihood of continued snoring or increase the likelihood clear breathing or other desired physiological response], the method comprising:
orienting the patient [this step can be done by the patient himself or herself] in either a prone position or a supine position such that either an anterior anatomical region or a posterior anatomical region, respectively position [0033, a person with excess weight can be aided by the by keeping the person's spine in a straight position. The system may accomplish this by increasing the pressure under the lower back when the person is sleeping on his/her back. The goal is to keep the spine in a natural position which may be near a straight position with some customized curves depending on the individual's natural spine shape. Similarly, Individuals with Scoliosis can be aided immensely by relieving the pressure on their spine while they sleep], is located adjacent a pressure-mitigation device [the digital bed system, abstract] that has multiple inflatable chambers or cells (abstract) and [0022] and that is situated on a surface on which the patient is to be situated; and
causing a controller to independently pressurize the multiple inflatable chambers to varying degrees in accordance with a programmed pattern [0022], so as to create moving force gradients to inhibit sustained vascular compression in either the anterior anatomical region or the posterior anatomical region of the patient [0036, the system may automatically sense where these hard tissues (bones) are located on the bed no matter which direction the pregnant woman may be laying on the bed. The system can automatically increase pressure on these particular hard tissues (bones) and decrease pressure at all of the appropriate points of the body].
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 obviousness-type 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); and 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 a nonstatutory double patenting ground provided the conflicting application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement.
Effective January 1, 1994, a registered attorney or agent of record may sign a terminal disclaimer. A terminal disclaimer signed by the assignee must fully comply with 37 CFR 3.73(b).
Claims 1, 3-8, 10, 12-19 are rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1-6,9-11,12-14 and 18-21 of U.S. Patent No. (12,370,108 B2). Although the conflicting claims are not identical, they are not patentably distinct from each other because the application claims are a broader recitation of the invention than that of the patented application.
Claim 1 of the instant application recites: a method for treating a patient that is diagnosed as having, or is suspected of having, a respiratory illness, the method comprising: orienting the patient in a prone position such that an anterior anatomical region is located adjacent a pressure-mitigation device that has multiple inflatable chambers and that is situated on a surface on which the patient is to be immobilized; and causing a controller to independently pressurize the multiple inflatable chambers to varying degrees in accordance with a programmed pattern that is associated with the anterior anatomical region, such that a force applied by the surface to the patient is shifted across the anterior anatomical region over time.
Claim 12 of U.S. Patent No. (12,370,108 B2) recites: a method for treating a patient that is diagnosed as having, or suspected of having, a respiratory illness, the method comprising: deploying a pressure-mitigation device with multiple inflatable chambers on a surface on which the patient is to be immobilized; orienting the patient in a prone position such that an anterior anatomical region is located adjacent the pressure-mitigation device; and causing a controller to independently pressurize the multiple inflatable chambers to varying degrees in accordance with a programmed pattern, such that a point of pressure applied by the surface to the patient is shifted across the anterior anatomical region over time.
Although the conflicting claims are not identical, they are not patentably distinct from each other because the difference between claim 1 of the current application and claim 12 of U.S. Patent (12,370,108 B2) lies in the fact that the patenting claims include many more elements and is thus much more specific. Thus, the invention of patented claim 12 is in effect a “species” of the “generic” invention of the instant application claim 1. It has been held that the generic invention is “anticipated” by the “species". See In re Goodman, 29 USPQ2d 2010 (Fed. Cir. 1993). Since claim 1 of the instant invention is anticipated by claim 12 of U.S. Patent (12,370,108 B2), it is not patentably distinct from claim 12 of U.S. Patent (12,370,108 B2).
All of the limitations of claim 3 of the instant application can be found in claim 18 of U.S. Patent (12,370,108 B2).
All of the limitations of claim 4 of the instant application can be found in claim 19 of U.S. Patent (12,370,108 B2).
All of the limitations of claim 5 of the instant application can be found in claim 13 of U.S. Patent (12,370,108 B2).
All of the limitations of claim 6 of the instant application can be found in claim 14 of U.S. Patent (12,370,108 B2).
All of the limitations of claim 7 of the instant application can be found in claim 20 of U.S. Patent (12,370,108 B2).
All of the limitations of claim 8 of the instant application can be found in claim 21 of U.S. Patent (12,370,108 B2).
All of the limitations of claim 10 of the instant application can be found in claim 1 of U.S. Patent (12,370,108 B2).
All of the limitations of claim 12 of the instant application can be found in claim 9 of U.S. Patent (12,370,108 B2).
All of the limitations of claim 13 of the instant application can be found in claim 10 of U.S. Patent (12,370,108 B2).
All of the limitations of claim 14 of the instant application can be found in claim 11 of U.S. Patent (12,370,108 B2).
All of the limitations of claim 15 of the instant application can be found in claim 2 of U.S. Patent (12,370,108 B2).
All of the limitations of claim 16 of the instant application can be found in claim 3 of U.S. Patent (12,370,108 B2).
All of the limitations of claim 17 of the instant application can be found in claim 4 of U.S. Patent (12,370,108 B2).
All of the limitations of claim 18 of the instant application can be found in claim 5 of U.S. Patent (12,370,108 B2).
All of the limitations of claim 19 of the instant application can be found in claim 6 of U.S. Patent (12,370,108 B2).
Conclusion
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/OPHELIA A HAWTHORNE/ Primary Examiner, Art Unit 3786
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