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 21-40 have been examined in this application. Claims 1-20 were previously canceled via preliminary amendment on 12/29/2025. This communication is the first action on merits.
Claim Objections
Claim 28 objected to because of the following informalities: Claim 28 states: “wherein the joining structures extend through the active layer, thereby joining the air distribution pad together such that the active layer extends throughout substantially an entirety of the active layer in a volume at least partially defined by the head edge, the foot edge, and the first and second side edges of the cover” which should likely be “wherein the joining structures extend through the active layer, thereby joining the air distribution pad together such that the joining structures extend. Appropriate correction is required.
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 25 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.
Regarding claim 25, the limitations “about 0.25 inches to about 2 inches” are recited. There is a lack of clarity as to the scope and metes and bounds of the claim. Particularly because it is unclear what the scale a person of ordinary skill in the art would attribute to ‘about’ and particularly alongside a range. It’s unclear if ‘about’ should include values greater than 2 inches or lesser than 0.25 inch as applicant does not establish a scale for what the measure of ‘about’ should incorporate and such scale is left up to a broad and open-ended interpretation. For the purposes of examination, the thickness of the comfort layer is construed as being “between 0.25 inches and 2 inches.”
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 21-40 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over U.S. Patent Application Publication 2005/0086739 to Wu in view of U.S. Patent 7,914,611 to Vrzalik et al. (hereinafter Vrzalik) in further view of U.S. Patent Application Publication 2003/0145380 to Schmid.
Regarding claim 21, Wu teaches: An air distribution pad configured to be positioned on a top of a mattress (see Fig. 11 and para [0036]: ventilation mattress 5 positioned on existing bed), the air distribution pad comprising:
an active layer (see Fig. 1-2, flexible pad 16) comprising structures to receive and distribute air along the active layer (see Fig. 1-2, air vents 165);
a comfort layer (see Fig. 1-2, fabric stuffing member 13) [comprising resilient foam material] that is air permeable (see Fig. 1-2, open spaces 1321 “for ventilation” per para [0031]), the comfort layer positioned on top of the active layer (see Fig. 1-2);
a cover configured to enclose the active layer and the comfort layer (see Fig. 1-2, outer bag 11), the cover comprising a cover top and a cover bottom (see Fig. 1-2, outer bag 11 has “top and bottom sheet layers 131, per para [0031]), the cover top defining a plurality of holes (see Fig. 1-2, small air vents 111) to allow air from the active layer and the comfort layer to flow out of the cover through the cover top (see para [0031]), the cover defining a head edge, a foot edge, and first and second side edges (see Fig. 11, ventilation mattress 5 has these edges as shown).
Wu does not teach the following: [a comfort layer] comprising resilient foam material and a manifold positioned inside the cover proximate a corner where the head edge meets the first side edge, the manifold configured to direct air laterally into the active layer to then be distributed through the active layer.
Vrzalik teaches: a comfort layer comprising resilient foam material (see col. 7, lines [21-25]: “spacer materials include…open cell foam”).
It would have been obvious to one having ordinary skill in the art at the time the invention was made to replace the fabric stuffing member of Wu with foam as taught by Vrzalik for improved user comfort 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.
Wu nor Vrzalik do not teach: a manifold positioned inside the cover proximate a corner where the head edge meets the first side edge, the manifold configured to direct air laterally into the active layer to then be distributed through the active layer.
Schmid teaches: a manifold (see Fig. 1, manifold 18) positioned inside the cover proximate a corner where the head edge meets the first side edge (see Fig. 1, as shown, manifold is positioned near corner), the manifold configured to direct air laterally into the active layer to then be distributed through the active layer (see Fig. 1 and 4, manifold 18 extends laterally into the cover sheet and provides air for distribution in air flow passages 19).
Wu, Vrzalik, and Schmid are all considered to be analogous to the claimed invention because they are the same field of ventilated mattress toppers. At the time of the invention, it would have been obvious for one of ordinary skill in the art to have modified the teachings of Wu and Vrzalik with these aforementioned teachings of Schmid in order to provide an improved manifold element having the structural features and placement as taught by Schmid to the existing device of Wu with a reasonable expectation of success to reduce the likelihood of blocked airflow due to a user collapsing the manifold (see Schmid, para [0037]).
Regarding claim 22, Wu as modified, teaches all the limitations as described in the rejection of claim 21, but does not teach: wherein the manifold defines an outlet which has a convex shape to direct air into the active layer.
Schmid teaches: wherein the manifold defines an outlet which has a convex shape to direct air into the active layer (see Fig. 1 and 4, manifold 18 has a convex shape in cross-section as shown).
Regarding claims 23-24, Wu as modified teaches all the limitations as described in the rejection of claim 21, but does not explicitly teach:
wherein the resilient foam material is visco-elastic foam (claim 23)
wherein the resilient foam material is visco-elastic polyurethane polyether foam (claim 24)
It is initially noted that visco-elastic foam is an open cell variety of foam. However, it would have been obvious to one having ordinary skill in the art at the time the invention was made to replace the open-cell foam taught by Vrzalik with more specific visco-elastic foams as required for improved user comfort (temperature and/or support) 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.
Regarding claims 25 (as best understood – see 112b rejection above), Wu as modified teaches all the limitations as described in the rejection of claim 21, but does not explicitly teach: wherein the comfort layer has a thickness from about 0.25 inches to about 2 inches.
However, Wu (Fig. 1) shows an approximate thickness of its outer bag and comfort layer in relation to set of common batteries (1551). One of ordinary skill in the art would have found the comfort layer 16 to fall within the range of 0.25 and 2 inches.
Furthermore, it has been held in In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984) that where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. In this case, there is no unexpected or significant result to having the thickness of the comfort layer of Wu to be from about 0.25 inches to about 2 inches.
Regarding claim 26, Wu as modified, teaches all the limitations as described in the rejection of claim 21, but does not teach: wherein the air distribution pad is connected via joining structures that comprise both adhesive and stitching.
Vrzalik teaches: wherein the air distribution pad is connected via joining structures that comprise both adhesive and stitching (see col. 14, lines [40-56]: “the flexible material can be chemically attached to the first and third sub-layers 3081 and 3121 through the use of adhesives, and the like, and/or mechanically attached through the use of fasteners such as stitches, clasps, hook and loop, and the like, and/or physically attached through the use of welds, such as RF welds and related methods.”).
Wu, Vrzalik, and Schmid are all considered to be analogous to the claimed invention because they are the same field of ventilated mattress toppers. At the time of the invention, it would have been obvious for one of ordinary skill in the art to have modified the teachings of Wu with these aforementioned teachings of Vrzalik in order to provide connecting structures including adhesive and stitching to the existing device of Wu with a reasonable expectation of success to facilitate the movement of vapor, air, and liquid therethrough (see Vrzalik, col. 14, lines [38-39]).
Regarding claim 27, Wu as modified, teaches all the limitations as described in the rejection of claim 26, but does not teach: wherein the joining structures extend through the active layer.
Vrzalik teaches: wherein the joining structures extend through the active layer (see Fig. 14B, see at least where strand members 3161 extend thru second sub-layer 3101 which is considered the “active layer”).
Regarding claim 28, Wu as modified, teaches all the limitations as described in the rejection of claim 27, but does not teach: wherein the joining structures extend through the active layer, thereby joining the air distribution pad together such that the active layer extends throughout substantially an entirety of the active layer in a volume at least partially defined by the head edge, the foot edge, and the first and second side edges of the cover.
Vrzalik teaches: wherein the joining structures extend through the active layer, thereby joining the air distribution pad together such that the active layer extends throughout substantially an entirety of the active layer in a volume at least partially defined by the head edge, the foot edge, and the first and second side edges of the cover (see Fig. 14A-14C, joining structure 3161/3181 extends across the extent of the support system (Fig. 1)).
Regarding claim 29, Wu as modified, teaches all the limitations as described in the rejection of claim 21, and additionally teaches: wherein the cover top comprises a mesh fabric defining the plurality of holes (see Fig. 1, outer bag 11 has vents 111, and thus inherently may define a “mesh” structure due to the presence of holes).
Regarding claim 30, Wu as modified, teaches all the limitations as described in the rejection of claim 21, and additionally teaches: wherein the comfort layer comprises a plurality of passages passing between an upper side and a lower side of the comfort layer to allow additional airflow through the comfort layer (see Fig. 1-2, open spaces 1321 “for ventilation” per para [0031]).
Regarding claim 31, Wu as modified, teaches all the limitations as described in the rejection of claim 21, and additionally teaches: wherein the active layer comprises an air distributor configured to distribute air along the active layer (see Fig. 1, fan 15).
Regarding claim 32, Wu as modified, teaches all the limitations as described in the rejection of claim 21, and additionally teaches: wherein the active layer comprises an internal spacer layer (see Fig. 1-2, springy support members 163) separate from the air distributor, the internal spacer layer comprising a structure configured to permit air to flow relatively freely through the internal spacer layer (see Fig. 1-2, air passages 164).
Regarding claims 33-34, Wu as modified teaches all the limitations as described in the rejection of claim 32, but does not explicitly teach:
wherein the internal spacer layer comprises a reticulated engineered material (claim 33)
wherein the reticulated engineered material comprises resilient fibers (claim 34)
Wu teaches the spacer layer being a “springy support members.” However, it would have been obvious to one having ordinary skill in the art at the time the invention was made to have utilized reticulated engineering material including resilient fibers to keep open the air passage 164 under compression from a user’s weight, for 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.
Regarding claim 35, Wu as modified, teaches all the limitations as described in the rejection of claim 34, and additionally teaches: wherein the resilient fibers are oriented to provide for resilient support in a direction of compression that is substantially orthogonal to a center plane of the internal spacer layer (see Fig. 2, support members 163 are oriented substantially vertically as shown to keep passages 164 open under compression from above).
Regarding claim 36, Wu as modified, teaches all the limitations as described in the rejection of claim 35, and additionally teaches: wherein the resilient fibers are configured to be compressed from an original shape in the direction of compression when a force is applied in the direction of compression, but return back to the original shape when the force is removed (see para [0035]: support members are defined as “springy” and thus inherently may contain the features of a “spring” which are designed to compress under a force and return to an original shape when the force is removed).
Regarding claim 37, Wu as modified, teaches all the limitations as described in the rejection of claim 34, and additionally teaches: wherein the resilient fibers are configured to provide resilient support in a direction extending between an upper surface and a lower surface of the active layer (see Fig. 2, support members 163 are oriented substantially vertically as shown to keep passages 164 open under compression from above).
Regarding claims 38, Wu as modified teaches all the limitations as described in the rejection of claim 34, but does not explicitly teach: wherein the resilient fibers comprise polyester fibers.
Wu teaches the spacer layer being a “springy support members.” However, it would have been obvious to one having ordinary skill in the art at the time the invention was made to have utilized polyester fibers to keep open the air passage 164 under compression from a user’s weight, for 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.
Regarding claim 39, Wu as modified teaches all the limitations as described in the rejection of claim 33, but does not explicitly teach: wherein the internal spacer layer has a thickness of between 1/3 inches to 1 inch.
However, Wu (Fig. 1) shows an approximate thickness of its outer bag and comfort layer 16 in relation to set of common batteries (1551). One of ordinary skill in the art would have found the comfort layer 16 to fall within the range of 1/3 inches to 1 inch.
Furthermore, it has been held in In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984) that where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. In this case, there is no unexpected or significant result to having the thickness of the comfort layer of Wu to be from about 1/3 inches to 1 inch.
Regarding claim 40, Wu as modified, teaches all the limitations as described in the rejection of claim 21, and additionally teaches: wherein the cover bottom comprises a material having a relatively low permeability to air relative to the cover top, thereby forcing air in the air distribution pad toward and out the cover top (see Fig. 1-2, air vents 111 are only present in a top side of the outer bag 11 thus the bottom side would be relatively less air permeable given its lack of air vents).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The cited patents show mattress toppers with ventilation features 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.
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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
6/12/2026
Prosecution Insights