DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
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.
Claims 2-3 and 9-33 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.
Claims 9 and 10, 13, 14, 23 include the limitations “high friction surface” and “low friction surface.” The terms “high friction” and “low friction” are not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear if the terms “high” and “low” in the claim are relative to one another or a different undefined baseline. In other words, something that is considered a high friction surface for a slanted surface could be considered a low friction surface for a flat surface. Clarification is requested.
The Examiner interprets the claims to mean that the “high friction surface” and “low friction surface” are higher/lower than each other but this should be clarified in the claim or removed.
Claims 11 includes the limitations “a high friction material” and “a low friction material.” The terms “high friction” and “low friction” are not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear if the terms “high” and “low” in the claim are relative to one another or a different undefined baseline. Clarification is requested.
The Examiner interprets the claims to mean that the “high friction material” and “low friction material” are higher/lower than each other but this should be clarified in the claim or removed.
Claims 2, 3, 8, 24, 25 and 32 all include the phrase “due to the higher coefficient of friction.” The claims all previously reference one material having a higher coefficient of friction than the other but the claims do not define a higher coefficient of friction so it is unclear if the higher coefficient of friction is the material having a higher coefficient of friction or a different coefficient of friction.
Claims 10-23 are dependent on claim 9 and are therefore rejected under 35 U.S.C. 112(second paragraph) accordingly.
Claims 25-31 are dependent on claim 24 and are therefore rejected under 35 U.S.C. 112(second paragraph) accordingly.
Claim 33 is dependent on claim 32 and are therefore rejected under 35 U.S.C. 112(second paragraph) accordingly.
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 pre-AIA 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 –
(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of application for patent in the United States.
Claim(s) 9, 17, and 22 is/are rejected under pre-AIA 35 U.S.C. 102(b) as being anticipated by Persson et al. (US Patent No. 6,658,676 – hereinafter Pesson).
Regarding Claim 9: Persson discloses a system for use with a bed (bed shown in Fig. 4 of Persson) having a frame (frame of the bed shown in Fig. 4 of Persson) and a supporting surface (mattress 12 of Persson) supported by the frame (Fig. 4 of Persson), the system comprising: a sheet (slide sheet 14, 16 of Persson) having a bottom surface (bottom most surface of slide sheet 14 of Persson) adapted to be placed above the supporting surface of the bed (shown in Fig. 4 of Persson) and a top surface (top most surface of cover material 16 of Persson) opposite the bottom surface (Fig. 4 of Persson), wherein the bottom surface has a low friction surface forming at least a portion of the bottom surface (Col. 1, lines 44-47 of Persson - “having a lower surface which is of a relatively low friction material designed under the weight of a patient to slide relative to an upper surface of the mattress”), and the top surface has a high friction surface forming at least a portion of the top surface (Col. 2, lines 43-49 of Persson - “Typically the cover material is at least partly fabricated from a synthetic fabric including a cotton fabric such as calico. Generally the cover material is at least partly constructed of an absorbent fabric. Additionally the cover material may be formed in a pair of opposing synthetic fabric layers with a filler or padding material located therebetween”), such that the top surface provides greater slipping resistance than the bottom surface (the top surface formed of cotton or calico providing greater slip resistance than the DACRON material specifically selected to create a low friction surface as taught by Persson); and a tether strap (grips 22 of Persson) connected to the sheet and extending from the sheet (Fig. 4 of Persson), the tether strap being configured for connection to the bed (Col. 4, lines 28-43 of Persson - “The accessory straps 50 and 52 as shown in detail in FIG. 5 are configured to loop through one of the grips such as 22 of the bedsheet device 10 and clip back onto itself. The accessory strap 50 or 52 is wrapped about a rigid portion of the bed trolley 40 such as the bedhead or side rail so as to restrict inadvertent sliding of the bedsheet device 10 relative to the mattress 12. The accessory straps 50 or 52 may be adjustable and as illustrated are of a conventional construction having either a clamp and loop or mutually engagable clips at respective opposing ends.”).
Regarding Claim 17: Persson discloses the system of claim 9, wherein the sheet further comprises a first piece of sheet material (slide sheet 14 of Persson) forming at least a majority portion of the bottom surface (see Figs. 1 and 2 of Persson showing bottom and top surfaces of the slide sheet of Persson) and a second piece of sheet material (cover 16 of Persson) connected to the first piece of sheet material (Col. 5, lines 40-41 of Persson – “The slide sheet 14 is stitched to the cover material 16.”) and forming at least a majority portion of the top surface (see Figs. 1 and 2 of Persson showing bottom and top surfaces of the slide sheet of Persson), the second piece of sheet material having a coefficient of friction that is higher than the first piece of sheet material (Col. 2, lines 43-49 of Persson - “Typically the cover material is at least partly fabricated from a synthetic fabric including a cotton fabric such as calico. Generally the cover material is at least partly constructed of an absorbent fabric. Additionally the cover material may be formed in a pair of opposing synthetic fabric layers with a filler or padding material located therebetween” and Col. 1, lines 44-47 of Persson - “having a lower surface which is of a relatively low friction material designed under the weight of a patient to slide relative to an upper surface of the mattress”), such that the first piece of sheet material forms the low friction surface (Col. 1, lines 44-47 of Persson - “having a lower surface which is of a relatively low friction material designed under the weight of a patient to slide relative to an upper surface of the mattress”) and the second piece of sheet material forms the high friction surface (Figs. 1-2 of Persson).
Examiner’s Note: Although Persson does not explicitly state that the cotton fabric forming the cover material has a coefficient higher than the coefficient of friction of the lower surface, since Dacron® is taught as being used as the relatively low friction material (Col. 3, lines 34-38 of Persson) and cotton is suggested as forming the upper surface it can be ascertained that the coefficient of friction of the cover is greater than that of the slide sheet of Persson.
Regarding Claim 22: Persson discloses the system of claim 9, further comprising a plurality of tether straps (grips 22 of Persson) connected to the sheet and extending from the sheet (Fig. 4 of Persson), each of the tether straps being configured for connection to the bed (Col. 4, lines 28-43 of Persson - “The accessory straps 50 and 52 as shown in detail in FIG. 5 are configured to loop through one of the grips such as 22 of the bedsheet device 10 and clip back onto itself. The accessory strap 50 or 52 is wrapped about a rigid portion of the bed trolley 40 such as the bedhead or side rail so as to restrict inadvertent sliding of the bedsheet device 10 relative to the mattress 12. The accessory straps 50 or 52 may be adjustable and as illustrated are of a conventional construction having either a clamp and loop or mutually engagable clips at respective opposing ends.”).
Claim(s) 19 is/are rejected under pre-AIA 35 U.S.C. 102(b) as being anticipated by Persson et al. (US Patent No. 6,658,676 – hereinafter Pesson) as evidenced by Pierce (US Patent No. 6,357,066).
Regarding Claim 19: Persson discloses the system of claim 9. Persson does not explicitly state that the sheet is breathable to allow passage of heat, air, and moisture vapor through the sheet.
However, Persson discloses the layers of the sheet formed of Dacron and cotton (see Col. 2, lines 34-49 of Persson). Pierce teaches that both cotton and DACRON are considered breathable materials (Col. 8, lines 7-13 of Pierce – “Alternatively, the pad may be covered with a breathable fabric such as cotton, nylon, polyester (e.g., DACRON, TERYLENE, or VYCRON), or polypropylene knit. The cover may be laminated to the foam material.”) Therefore, Pierce provides support for the disclosure of the materials of Persson being breathable.
Claims 9 (alternatively) is/are is/are rejected under pre-AIA 35 U.S.C. 102(b) as being anticipated by Walker (US Patent No. 6,560,793).
Regarding Claim 9: Walker disclose a system (draw sheet of Walker) for use with a bed (abstract an Fig. 6 of Walker) having a frame (shown in Fig. 6 of Walker) and a supporting surface (see the surface of the mattress of Walker) supported by the frame (Figs. 7-8 of Walker), the system comprising: a sheet (draws sheet 10 of Walker) having a bottom surface adapted to be placed above the supporting surface of the bed (Figs. 6-8 of Walker) and a top surface (see Figs. 6 of Walker showing the upper surface of 10) opposite the bottom surface (Figs. 6-8 of Walker), wherein the bottom surface has a low friction surface forming at least a portion of the bottom surface (Col. 4, lines 25-30 of Walker – “However, it is acceptable that the width of the draw sheet be at least approximately one-half the circumference of the patient's torso. In addition, it is preferred that the bottom surface 12 of the draw sheet comprise a low friction material, such as silk, polyester, polypropylene, satin, nylon or Gore-Tex.RTM”), and the top surface has a high friction surface forming at least a portion of the top surface (fasteners 24 formed of hook material – Fig. 9), such that the top surface provides greater slipping resistance than the bottom surface (since fasteners 24 are formed of hook material and are intended for coupling to a loop material, the material would provide greater slipping resistance than the low friction bottom surface of Walker); and a tether strap (28 of Walker) connected to the sheet and extending from the sheet (connected via fasteners 24 – Figs. 1-8 of Walker), the tether strap being configured for connection to the bed (shown in at least Fig. 8 of Walker).
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 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.
Claims 10-12, 14, 20-21, and 32 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Persson et al. (US Patent No. 6,658,676 – hereinafter Persson) in view of DuDonis (US Patent No. 7,240,384).
Regarding Claim 10: Persson discloses the system of claim 9, but does not disclose further comprising a wedge comprising a wedge body formed at least partially of a compressible material and having a base wall, a ramp surface, and a back wall, the ramp surface joined to the base wall to form an apex and positioned at an angle of approximately 15-35 degrees to the base wall, wherein the ramp surface has a low friction surface forming at least a portion of the ramp surface and the base wall has a high friction surface forming at least a portion of the base wall.
However, in the same field of endeavor, patient positioning (see the abstract of DuDonis), DuDonis teaches a wedge (positioning aid of Fig. 9 of DuDonis) comprising a wedge body (Fig. 9 of DuDonis) formed at least partially of a compressible material (foam cushion 1031 of DuDonis – Col. 8, lines 18-21 of DuDonis) and having a base wall (1015 of DuDonis – Fig. 9), a ramp surface (patients panel 1013 of DuDonis – Fig. 9), and a back wall (caregiver’s panel 1014 of DuDonis – Fig. 9), the ramp surface joined to the base wall to form an apex (shown in Fig. 9 of DuDonis) and positioned at an angle of approximately 15-35 degrees to the base wall (Col. 5, lines 59-64 of DuDonis – “In the first and second embodiments of the positioning aid the angle formed by the bottom panel 15 and 215 and the patient's panel 13 and 215 is approximately 30.degree., .alpha. on FIG. 5. This allows the patient to be maintained at a lateral inclined position of approximately 30.degree. as recommended by the National Pressure Ulcer Advisory panel.”), wherein the ramp surface has a low friction surface (Col. 9, lines 48-52 of DuDonis – “ In the embodiments, the upper sides of the cover, that is, the side to which the patient is exposed, are made of friction and shear reducing fabrics, such as nylon or polyurethane fabrics. The use of friction and shear reducing fabrics alleviates and minimizes trauma to the skin of the patient.”) forming at least a portion of the ramp surface (Col. 9 of DuDonis) and the base wall has a high friction surface forming at least a portion of the base wall (Col. 9, lines 53-59 of DuDonis – “In the embodiments, a variety of materials may be used as the non-slip coating applied to the side of the bottom panel which makes contact with the sheet and mattress of the patient positioning aid cover. Any durable suitable material which provides a slip-resistant or non-slip effect which prevents and retards the sliding of the positioning aid on the surface of the bedsheet may be used.”)
DuDonis does not explicitly disclose the use of the wedge with the sheet. However, presented with the teachings of both Persson (directed toward a patient transfer sheet) and DuDonis (directed toward a bariatric patient positioning wedge), one having ordinary skill in the art before the date of invention would have found it obvious to utilize the inventions together since both Persson and DuDonis are concerned with aiding a caregiver in positioning a patient. DuDonis teaches the benefit of using wedges to elevate and assist in turning a patient (Col. 1, lines 38-42 of DuDonis – “The immobile bariatric patient population has special needs for a lateral turning and positioning device due to the tendency of the positioning devices to migrate away or "pop out" from behind the patient while in use.”) and Persson teaches the use of sliding sheets to aid in turning/positioning of the patient (claim 1). One would have been motivated to combine Persson and DuDonis since DuDonis provides the benefit of aiding caregivers with the tasks of manipulation of bariatric patients (Col. 44-46 of DuDonis).
Regarding Claim 11: Persson in view of DuDonis make obvious the system of claim 10, wherein a high friction material is connected to the base wall to form the high friction surface (Col. 9, lines 53-59 of DuDonis – “In the embodiments, a variety of materials may be used as the non-slip coating applied to the side of the bottom panel which makes contact with the sheet and mattress of the patient positioning aid cover. Any durable suitable material which provides a slip-resistant or non-slip effect which prevents and retards the sliding of the positioning aid on the surface of the bedsheet may be used.”) and a low friction material is connected to the ramp surface to form the low friction surface (Col. 9, lines 48-52 of DuDonis – “In the embodiments, the upper sides of the cover, that is, the side to which the patient is exposed, are made of friction and shear reducing fabrics, such as nylon or polyurethane fabrics. The use of friction and shear reducing fabrics alleviates and minimizes trauma to the skin of the patient”).
Examiner Note: The Examiner considers a material attached to walls via a direct application of a material or coating to the claimed surface and/or an indirect connection via a covering connected to the wedge.
Regarding Claim 12: Persson in view of DuDonis make obvious the system of claim 11, wherein the low friction material is wrapped at least partially around the apex, such that the low friction material forms a portion of the base wall (claim 1 of DuDonis – “and the cushion having a cover comprised of a moisture proof low friction and shear reducing material, the cover having a high friction polyurethane, butyl rubber, or vinyl coating on the portion of the cover covering the bottom panel of the cushion.”).
Examiner Note: The Examiner considers the cover formed of a low friction material which has a coated bottom panel to be wrapped around the apex.
Regarding Claim 14: Persson in view of DuDonis make obvious the system of claim 10. Persson in view of DuDonis do not explicitly disclose further comprising a second wedge comprising a second wedge body formed at least partially of the compressible material and having a second base wall, a second ramp surface, and a second back wall, the second ramp surface joined to the second base wall to form a second apex and positioned at an angle of 15-35 degrees to the second base wall, wherein the second ramp surface has a second low friction surface forming at least a portion of the second ramp surface and the second base wall has a second high friction surface forming at least a portion of the second base wall.
However, since claim 14 requires an identical second wedge to claim 10, and DuDonis teaches the features of the claimed wedge as well as the purpose of the wedge for aiding in positioning a person. One having ordinary skill in the art would have found it obvious to duplicate the wedge DuDonis and utilize two wedges with the sheet of Persson with a reasonable expectation of success. Duplicating the components of a prior art device is a design consideration within the skill of the art and mere duplication of parts has no patentable significance unless a new and unexpected result is produced. In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960). MPEP 2144.04 VI.
Regarding Claim 20: Persson discloses the system of claim 9, but does not disclose further comprising a support device configured to be placed below the bottom surface of the sheet to at least partially support the patient in an angled position.
However, in the same field of endeavor, patient positioning (see the abstract of DuDonis), DuDonis teaches a support device (positioning aid of Fig. 9 of DuDonis) configured to be placed below [a patient] [….] to at least partially support the patient in an angled position (Col. 5, lines 59-64 of DuDonis – “In the first and second embodiments of the positioning aid the angle formed by the bottom panel 15 and 215 and the patient's panel 13 and 215 is approximately 30.degree., .alpha. on FIG. 5. This allows the patient to be maintained at a lateral inclined position of approximately 30.degree. as recommended by the National Pressure Ulcer Advisory panel.”).
DuDonis does not explicitly disclose the wedge placed below the bottom surface of the sheet. However, presented with the teachings of both Persson (directed toward a patient transfer sheet) and DuDonis (directed toward a bariatric patient positioning wedge), one having ordinary skill in the art before the date of invention would have found it obvious to utilize the inventions together since both Persson and DuDonis are concerned with aiding a caregiver in positioning a patient. DuDonis teaches the benefit of using wedges to elevate and assist in turning a patient (Col. 1, lines 38-42 of DuDonis – “The immobile bariatric patient population has special needs for a lateral turning and positioning device due to the tendency of the positioning devices to migrate away or "pop out" from behind the patient while in use.”) and Persson teaches the use of sliding sheets to aid in turning/positioning of the patient (claim 1). One would have been motivated to combine Persson and DuDonis since DuDonis provides the benefit of aiding caregivers with the tasks of manipulation of bariatric patients (Col. 44-46 of DuDonis).
Regarding Claim 21: Persson in view of DuDonis make obvious the system of claim 20, wherein the support device comprises at least one wedge (positioning aid of Fig. 9 of DuDonis being a wedge) having an angled ramp surface (patients panel 1013 of DuDonis showing an angled ramped surface– Fig. 9) for at least partially supporting the patient in the angled position (Col. 5, lines 59-64 of DuDonis – “In the first and second embodiments of the positioning aid the angle formed by the bottom panel 15 and 215 and the patient's panel 13 and 215 is approximately 30.degree., .alpha. on FIG. 5. This allows the patient to be maintained at a lateral inclined position of approximately 30.degree. as recommended by the National Pressure Ulcer Advisory panel.”).
Regarding Claim 32: Persson discloses a system for use with a bed (bed shown in Fig. 4 of Persson) having a frame (frame of the bed shown in Fig. 4 of Persson) having a frame (Fig. 4 of Persson) and a supporting surface (mattress 12 of Persson) supported by the frame (Fig. 4 of Persson), the system comprising: a sheet (slide sheet 14, 16 of Persson) having a bottom surface (bottom most surface of slide sheet 14 of Persson) adapted to be placed above the supporting surface of the bed (shown in Fig. 4 of Persson) and a top surface (top most surface of cover material 16 of Persson) opposite the bottom surface (Fig. 4 of Persson), the sheet comprising a first material (Col. 3, lines 34-38 of Persson - “a pliable polyester fabric such as that sold in Australia and around the world under the Dupont trade mark of DACRON”) having a first coefficient of friction (Col. 1, lines 44-47 of Persson - “having a lower surface which is of a relatively low friction material designed under the weight of a patient to slide relative to an upper surface of the mattress”), and a second material (cover 16 of Persson) connected to the first material (Col. 5, lines 40-41 of Persson – “The slide sheet 14 is stitched to the cover material 16.”), the second material having a second coefficient of friction (Col. 2, lines 43-49 of Persson - “Typically the cover material is at least partly fabricated from a synthetic fabric including a cotton fabric such as calico. Generally the cover material is at least partly constructed of an absorbent fabric. Additionally the cover material may be formed in a pair of opposing synthetic fabric layers with a filler or padding material located therebetween” – note that all materials have a coefficient of friction), wherein the first material forms at least a majority portion of the bottom surface and the second material forms at least a majority portion of the top surface (see Figs. 1 and 2 of Persson showing bottom and top views of the slide sheet of Persson and the majority of each surface formed by the first and second materials respectively), and wherein the second coefficient of friction is higher than the first coefficient of friction such that the top surface provides greater slipping resistance than the bottom surface (see the Examiner’s Note below); […..]
Examiner’s Note: Although Persson does not explicitly state that the cotton fabric forming the cover material has a coefficient higher than the coefficient of friction of the lower surface, since Dacron® is taught as being used as the relatively low friction material (Col. 3, lines 34-38 of Persson) and cotton is suggested as forming the upper surface it can be ascertained that the coefficient of friction of the cover is greater than that of the slide sheet of Persson.
Persson does not disclose a wedge comprising a wedge body formed at least partially of a compressible material and having a base wall, a ramp surface, and a back wall, the ramp surface joined to the base wall to form an apex and positioned at an angle of approximately 15-35 degrees to the base wall, wherein the ramp surface is at least partially formed of a third material having a third coefficient of friction and the base wall is at least partially formed of a fourth material having a fourth coefficient of friction, and wherein the fourth coefficient of friction is higher than the third coefficient of friction; wherein the wedge is configured to be positioned under the sheet such that the base wall confronts the supporting surface of the bed and the ramp surface confronts the bottom surface of the sheet, and wherein the fourth material is adapted to resist sliding of the wedge with respect to the supporting surface of the bed, due to the higher fourth coefficient of friction.
However, in the same field of endeavor, patient positioning (see the abstract of DuDonis), DuDonis teaches a wedge (positioning aid of Fig. 9 of DuDonis) comprising a wedge body (Fig. 9 of DuDonis) formed at least partially of a compressible material (foam cushion 1031 of DuDonis – Col. 8, lines 18-21 of DuDonis) and having a base wall (1015 of DuDonis – Fig. 9), a ramp surface (patients panel 1013 of DuDonis – Fig. 9), and a back wall (caregiver’s panel 1014 of DuDonis – Fig. 9), the ramp surface joined to the base wall to form an apex (shown in Fig. 9 of DuDonis) and positioned at an angle of approximately 15-35 degrees to the base wall (Col. 5, lines 59-64 of DuDonis – “In the first and second embodiments of the positioning aid the angle formed by the bottom panel 15 and 215 and the patient's panel 13 and 215 is approximately 30.degree., .alpha. on FIG. 5. This allows the patient to be maintained at a lateral inclined position of approximately 30.degree. as recommended by the National Pressure Ulcer Advisory panel.”), wherein the ramp surface is at least partially formed of a third material having a third coefficient of friction (Col. 9, lines 48-52 of DuDonis – “In the embodiments, the upper sides of the cover, that is, the side to which the patient is exposed, are made of friction and shear reducing fabrics, such as nylon or polyurethane fabrics. The use of friction and shear reducing fabrics alleviates and minimizes trauma to the skin of the patient.”) and the base wall is at least partially formed of a fourth material having a fourth coefficient of friction (Col. 9, lines 53-59 of DuDonis – “In the embodiments, a variety of materials may be used as the non-slip coating applied to the side of the bottom panel which makes contact with the sheet and mattress of the patient positioning aid cover. Any durable suitable material which provides a slip-resistant or non-slip effect which prevents and retards the sliding of the positioning aid on the surface of the bedsheet may be used.”) and wherein the fourth coefficient of friction is higher than the third coefficient of friction (see Col. 9, lines 48-59 of DuDonis which teaches a lower friction surface on the ramp surface of the wedge and a higher friction surface on the base wall); wherein the wedge is configured to be positioned under the [patient] [….] such that the base wall confronts the supporting surface of the bed (wedge positioned on mattress of DuDonis – Fig. 1) and the ramp surface confronts the bottom surface of the [patient] [….], and wherein the fourth material is adapted to resist sliding of the wedge with respect to the supporting surface of the bed, due to the higher fourth coefficient of friction (Col. 9, lines 53-59 of DuDonis – “In the embodiments, a variety of materials may be used as the non-slip coating applied to the side of the bottom panel which makes contact with the sheet and mattress of the patient positioning aid cover. Any durable suitable material which provides a slip-resistant or non-slip effect which prevents and retards the sliding of the positioning aid on the surface of the bedsheet may be used.”)
DuDonis does not explicitly disclose the use of the wedge with the sheet. However, presented with the teachings of both Persson (directed toward a patient transfer sheet) and DuDonis (directed toward a bariatric patient positioning wedge), one having ordinary skill in the art before the date of invention would have found it obvious to utilize the inventions together since both Persson and DuDonis are concerned with aiding a caregiver in positioning a patient. DuDonis teaches the benefit of using wedges to elevate and assist in turning a patient (Col. 1, lines 38-42 of DuDonis – “The immobile bariatric patient population has special needs for a lateral turning and positioning device due to the tendency of the positioning devices to migrate away or "pop out" from behind the patient while in use.”) and Persson teaches the use of sliding sheets to aid in turning/positioning of the patient (claim 1). One would have been motivated to combine Persson and DuDonis since DuDonis provides the benefit of aiding caregivers with the tasks of manipulation of bariatric patients (Col. 44-46 of DuDonis).
Claims 15 and 33 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Persson et al. (US Patent No. 6,658,676 – hereinafter Persson) in view of DuDonis (US Patent No. 7,240,384) further in view of Seeman (US Patent No. 4,662,016).
Regarding Claim 15: Persson in view of DuDonis make obvious the system of claim 9. However, Persson and DuDonis do not disclose or make obvious wherein the tether strap comprises an elastic portion and a non-elastic portion each forming a portion of a length of the tether strap, wherein the elastic portion is connected at one end to the sheet and at another end to the non-elastic portion, and the non- elastic portion is configured for connection to a fastener on the bed.
However, solving the same purpose of holding bedclothes on a bed (see the abstract of Seeman), Seeman teaches wherein the tether strap comprises an elastic portion (strap 14 of Seeman described of being an elastic stretch material) and a non-elastic portion (first piece of gripping material 22 of Seeman – Fig. 2 of Seeman) each forming a portion of a length of the tether strap (as shown in Fig. 2 of Seeman), wherein the elastic portion is connected at one end to the sheet (via clip 20 of Seeman) and at another end to the non-elastic portion (see Fig. 2 of Seeman), and the non- elastic portion is configured for connection to a fastener on the bed (gripping material 24 of Seeman – “A second piece of gripping material 24, of the opposite surface type, is provided for attachment to the bed at various selected locations. In the illustrated embodiment, anchor piece 24 is of the hook-type, having a surface covered with upright hooks and the piece 22 attached to strap 14 is of the loop-type, having a surface covered with looped nylon strands which are engaged and gripped by the hooks on piece 24. Anchor piece 24 preferably has an adhesive backing for convenient attachment to the bed frame or box spring”).
One having ordinary skill in the art before the date of invention would have found it obvious to combine Persson (directed toward a patient transfer sheet), DuDonis (directed toward a bariatric patient positioning wedge), and Seeman (directed toward an elastic tether strap) with a reasonable expectation of success by forming the tether straps of Persson with an elastic portion connected to the sheet and a non-elastic portion at the end for attachment to a fastener connected to a bedframe.
Regarding Claim 33: Persson in view of DuDonis make obvious the system of claim 32, further comprising a tether strap (grips 22 of Persson) connected to the sheet (Fig. 4 of Persson) and extending from the sheet (Fig. 4 of Persson), [….].
Persson in view of DuDonis do not disclose or make obvious wherein the tether strap comprises an elastic portion and a non-elastic portion each forming a portion of a length of the tether strap, wherein the elastic portion is connected at one end to the sheet and is connected at another end to the non-elastic portion, and the non-elastic portion is configured for connection to a fastener on the bed.
However, solving the same purpose of holding bedclothes on a bed (see the abstract of Seeman), Seeman teaches wherein the tether strap (strap 14 of Seeman described of being an elastic stretch material) and a non-elastic portion (first piece of gripping material 22 of Seeman – Fig. 2 of Seeman) each forming a portion of a length of the tether strap (as shown in Fig. 2 of Seeman), wherein the elastic portion is connected at one end to the sheet (via clip 20 of Seeman) and is connected at another end to the non-elastic portion (see Fig. 2 of Seeman), and the non-elastic portion is configured for connection to a fastener on the bed (gripping material 24 of Seeman – “A second piece of gripping material 24, of the opposite surface type, is provided for attachment to the bed at various selected locations. In the illustrated embodiment, anchor piece 24 is of the hook-type, having a surface covered with upright hooks and the piece 22 attached to strap 14 is of the loop-type, having a surface covered with looped nylon strands which are engaged and gripped by the hooks on piece 24. Anchor piece 24 preferably has an adhesive backing for convenient attachment to the bed frame or box spring”).
One having ordinary skill in the art before the date of invention would have found it obvious to combine Persson (directed toward a patient transfer sheet), DuDonis (directed toward a bariatric patient positioning wedge), and Seeman (directed toward an elastic tether strap) with a reasonable expectation of success by forming the tether straps of Persson with an elastic portion connected to the sheet and a non-elastic portion at the end for attachment to a fastener connected to a bedframe. One having ordinary skill would have been motivated to make such a combination because “The elastic of straps permits some movement of the bedclothes while the bed is in use. The bedclothes are, nevertheless, retained in place allowing the bed to be made up with ease.” (Col. 3, lines 24-28 of Seeman).
Claims 16 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Persson et al. (US Patent No. 6,658,676 – hereinafter Persson) in view of DuDonis (US Patent No. 7,240,384) in view of Seeman (US Patent No. 4,662,016) further in view of Stinson (US Patent No. 7,818,836).
Regarding Claim 16: Persson in view of DuDonis and Seeman make obvious the system of claim 15, wherein the non-elastic portion is made from a material configured to function as a loop material in a hook-and-loop connecting structure (Seeman – Fig. 2), but Persson in view of DuDonis and Seeman do not explicitly disclose or make obvious and wherein the non-elastic portion is connected to the elastic portion by a hook-and-loop connection and is configured for connection to the fastener by a hook-and-loop connection.
However, solving the same problem of maintaining a position of a sheet on a bed (see the abstract of Stinson), Stinson teaches using a hook and loop connection as an alternative to snaps (see Col. 2, lines 34-37 of Stinson).
Accordingly, it would have been obvious to one of ordinary skill in the art before the claimed invention was made, having the teachings of Persson (directed toward a patient transfer sheet), DuDonis (directed toward a bariatric patient positioning wedge), Seeman (directed toward an elastic tether strap) and Stinson (directed towards straps utilizing hook and loop connections as an alternative to snap connection) before them, to have substituted the snap connection of Seeman with a hook and loop connection as taught by Stinson with a reasonable expectation of success. The substitution of one known element for another would have yielded predictable results to one of ordinary skill in the art, e.g. easier connection and disconnection, less error, and further adjustability.
Claims 18 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Persson et al. (US Patent No. 6,658,676 – hereinafter Persson) in view of Seeman (US Patent No. 4,662,016).
Regarding Claim 18: Persson discloses the system of claim 9, but does not disclose further comprising a fastener strip having an adhesive portion adapted for adhesively connecting to the bed, wherein the tether strap is releasably connectable to the fastener strip via hook and loop connection.
However, solving the same problem of releasably attaching items to a person supporting surface (see the abstract of Seeman), Seeman teaches a fastener strip (second piece of gripping material 24 of Seeman – Figs. 2-3) having an adhesive portion (Col. 2, lines 56-58 of Seeman – “Anchor piece 24 preferably has an adhesive backing for convenient attachment to the bed frame or box springs.”) adapted for adhesively connecting to the bed (Col. 2, lines 56-58 of Seeman), wherein the tether strap (strap 14 of Seeman) is releasably connectable to the fastener strip via hook and loop connection (Col. 2, lines 64-68 of Seeman -Col. 3, line 18 and Col. 3, line 22-24 of Seeman teach “To attach the hook and loop tape to strap 14” and “Straps 14 are then attached by simply pressing the gripping pieces 22 against the anchor pieces 24”).
One having ordinary skill in the art before the date of invention would have found it obvious to combine Persson (directed toward a patient transport system with straps for coupling to a bed) and Seeman (directed toward a strap system removably connecting to a bed) with a reasonable expectation of success.
One having ordinary skill would have been motivated to make such a combination because “The elastic of straps permits some movement of the bedclothes while the bed is in use. The bedclothes are, nevertheless, retained in place allowing the bed to be made up with ease.” (Col. 3, lines 24-28 of Seeman).
Claims 23 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Persson et al. (US Patent No. 6,658,676 – hereinafter Persson) in view of Sherrod et al. (US PG Pub. 2003/0124928 – hereinafter Sherrod).
Regarding Claim 23: Persson discloses system of claim 9. Persson does not disclose further comprising: an absorbent pad configured to be positioned on top of the top surface of the sheet, wherein the high friction surface resists sliding of the pad with respect to the top surface of the sheet.
However, in the same field of endeavor, patient supports (bed pad as referred to in the abstract of Sherrod), Sherrod teaches an absorbent pad (see the absorbent article described in the abstract of Sherrod which teaches “a bed pad” and paragraph [0019] which references an “absorbent article 20”) configured to be positioned on top of the top surface of the sheet (see at least paragraph [0001] and [0044] of Sherrod which teach “Absorbent articles, such as bed pads, are commonly used in hospitals, long term care facilities, and private homes to protect bedding, mattresses, cushions, seats and so forth, from being soiled by an individual” and “This improves the ability of the absorbent 20 to remain in position during use”), wherein the high friction surface resists sliding of the pad with respect to the top surface of the sheet (since Sherrod’s absorbent pad contains a skid resistant coating and the top surface of Persson includes a material with a higher friction than the lower surface the material would resist sliding of the pad with respect to the top surface of the sheet at least partially because of the upper surface of the device of Persson).
One having ordinary skill in the art before the date of invention would have found it obvious to combine Persson (directed toward a patient transfer sheet) and Sherrod (directed toward an absorbent pad for positioning on a bedding) with a reasonable expectation of success. One having ordinary skill in the art would have been motivated to make such a combination in order to protect the article beneath the pad (see paragraph [0001] of Sherrod).
Claims 1-3 and 5-7 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Persson et al. (US Patent No. 6,658,676 – hereinafter Persson) in view of Seeman (US Patent No. 4,662,016) further in view of DuDonis (US Patent No. 7,240,384).
Regarding Claim 1: Persson discloses a system for use with a bed (bed shown in Fig. 4 of Persson) having a frame (frame of the bed shown in Fig. 4 of Persson) and a supporting surface (mattress 12 of Persson) supported by the frame, the system comprising: a sheet (slide sheet 14, 16 of Persson) having a bottom surface (bottom most surface of slide sheet 14 of Persson) adapted to be placed above the supporting surface of the bed (shown in Fig. 4 of Persson) and a top surface (top most surface of cover material 16 of Persson) opposite the bottom surface (Fig. 4 of Persson), wherein the bottom surface is at least partially formed of a first material (Col. 3, lines 34-38 of Persson - “a pliable polyester fabric such as that sold in Australia and around the world under the Dupont trade mark of DACRON”) having a first coefficient of friction (Col. 1, lines 44-47 of Persson - “having a lower surface which is of a relatively low friction material designed under the weight of a patient to slide relative to an upper surface of the mattress”), and the top surface is at least partially formed of a second material (cover 16 of Persson) having a second coefficient of friction (Col. 2, lines 43-49 of Persson - “Typically the cover material is at least partly fabricated from a synthetic fabric including a cotton fabric such as calico. Generally the cover material is at least partly constructed of an absorbent fabric. Additionally the cover material may be formed in a pair of opposing synthetic fabric layers with a filler or padding material located therebetween”), and wherein the second coefficient of friction is higher than the first coefficient of friction such that the top surface provides greater slipping resistance than the bottom surface (see the Examiner’s Note below); a tether strap (grips 22 of Persson) connected to the sheet and extending from the sheet (Fig. 4 of Persson),the tether strap configured for connection to a [bed rail] […].
Examiner’s Note: Although Persson does not explicitly state that the cotton fabric forming the cover material has a coefficient higher than the coefficient of friction of the lower surface, since Dacron® is taught as being used as the relatively low friction material (Col. 3, lines 34-38 of Persson) and cotton is suggested as forming the upper surface it can be ascertained that the coefficient of friction of the cover is greater than that of the slide sheet of Persson.
Persson does not disclose the tether strap being configured for connection to a fastener on the bed, wherein the tether strap comprises an elastic portion forming at least a portion of a length of the tether strap, and a wedge comprising a base wall, a ramp surface, and a back wall, the ramp surface being positioned at an angle to the base wall, wherein the wedge is configured to be positioned under the sheet such that the base wall confronts the supporting surface of the bed and the ramp surface confronts the bottom surface of the sheet.
Solving the same problem of coupling two items via a tether (see the abstract of Seeman), Seeman teaches the tether strap being configured for connection to a fastener on the bed (gripping material 24 of Seeman – “A second piece of gripping material 24, of the opposite surface type, is provided for attachment to the bed at various selected locations. In the illustrated embodiment, anchor piece 24 is of the hook-type, having a surface covered with upright hooks and the piece 22 attached to strap 14 is of the loop-type, having a surface covered with looped nylon strands which are engaged and gripped by the hooks on piece 24. Anchor piece 24 preferably has an adhesive backing for convenient attachment to the bed frame or box spring”) a tether strap (strap 14 and gripping material 22 of Seeman) comprises an elastic portion (strap 14 of Seeman described of being an elastic stretch material) forming at least a portion of a length of the tether strap (Fig. 2 of Seeman).
One having ordinary skill in the art before the date of invention would have found it obvious to combine Persson (directed toward a patient transfer sheet) and Seeman (directed toward an elastic tether strap) with a reasonable expectation of success by forming the tether straps of Persson with an elastic portion connected to the sheet and a non-elastic portion at the end for attachment to a fastener connected to a bedframe.
One having ordinary skill would have been motivated to make such a combination because “The elastic of straps permits some movement of the bedclothes while the bed is in use. The bedclothes are, nevertheless, retained in place allowing the bed to be made up with ease.” (Col. 3, lines 24-28 of Seeman).
Persson and Seeman do not disclose or make obvious a wedge comprising a base wall, a ramp surface, and a back wall, the ramp surface being positioned at an angle to the base wall, wherein the wedge is configured to be positioned under the sheet such that the base wall confronts the supporting surface of the bed and the ramp surface confronts the bottom surface of the sheet.
However, in the same field of endeavor, patient positioning (see the abstract of DuDonis), DuDonis teaches a wedge (positioning aid of Fig. 9 of DuDonis) comprising a base wall (1015 of DuDonis – Fig. 9), a ramp surface (patients panel 1013 of DuDonis – Fig. 9), and a back wall (caregiver’s panel 1014 of DuDonis – Fig. 9), the ramp surface being positioned at an angle to the base wall (shown in Fig. 9 of DuDonis), wherein the wedge is configured to be positioned under the [patient] […] such that the base wall confronts the supporting surface of the bed and the ramp surface confronts the bottom surface of the [patient] […].
DuDonis does not explicitly disclose the use of the wedge with the sheet. However, presented with the teachings of both Persson (directed toward a patient transfer sheet), Seeman (directed toward a tether) and DuDonis (directed toward a bariatric patient positioning wedge), one having ordinary skill in the art before the date of invention would have found it obvious to utilize the inventions together since both Persson and DuDonis are concerned with aiding a caregiver in positioning a patient. DuDonis teaches the benefit of using wedges to elevate and assist in turning a patient (Col. 1, lines 38-42 of DuDonis – “The immobile bariatric patient population has special needs for a lateral turning and positioning device due to the tendency of the positioning devices to migrate away or "pop out" from behind the patient while in use.”) and Persson teaches the use of sliding sheets to aid in turning/positioning of the patient (claim 1). One would have been motivated to combine Persson and DuDonis since DuDonis provides the benefit of aiding caregivers with the tasks of manipulation of bariatric patients (Col. 44-46 of DuDonis).
Regarding Claim 2: Persson, as modified by Seeman and DuDonis, makes obvious the system of claim 1, wherein the wedge further comprises a wedge body formed at least partially of a compressible material (“foam cushion 1031 is comprised of the resilient, relatively hard foam core 1035”, Col. 8, lines 18-21 of DuDonis) and defining the base wall (1015 of DuDonis - “foam cushion 1031 is comprised of the resilient, relatively hard foam core 1035”, Col. 8, lines 18-21 of DuDonis), the ramp surface (patients panel 1013 of DuDonis – Fig. 9), and the back wall (caregiver’s panel 1014 of DuDonis – Fig. 9), wherein the ramp surface is at least partially formed of a third material (cover 1021 forming patients panel 1013 – Col. 8, lines 13-18 of DuDonis) having a third coefficient of friction (coefficient of friction of the material forming panel 1013 of DuDonis) and the base wall is at least partially formed of a fourth material (Col. 8, lines 13-18 of DuDonis - antislip material 1024 on the bottom of bottom panel 1015”) having a fourth coefficient of friction (antislip material of DuDonis having a coefficient of friction), and wherein the fourth coefficient of friction is higher than the third coefficient of friction (see Col. 9, lines 48-59 of DuDonis which teaches a lower friction surface on the ramp surface of the wedge and a higher friction surface on the base wall); such that the fourth material is adapted to resist sliding of the wedge with respect to the supporting surface of the bed, due to the higher coefficient of friction (Col. 9, line 56-59 of DuDonis – “Any durable suitable material which provides a slip-resistant or non-slip effect which prevents and retards the sliding of the positioning aid on the surface of the bedsheet may be used.”).
Regarding Claim 3: Persson, as modified by Seeman and DuDonis, makes obvious the system of claim 2. Persson, Seeman and DuDonis do not explicitly disclose further comprising a second wedge comprising a second wedge body formed at least partially of the compressible material and defining a second base wall, a second ramp surface, and a second back wall, wherein the second ramp surface is at least partially formed of the third material and the second base wall is at least partially formed of the fourth material, and wherein the fourth material is adapted to resist sliding of the second wedge with respect to the supporting surface of the bed, due to the higher coefficient of friction.
However, since claim 3 requires an identical second wedge to claim 2, and DuDonis teaches the features of the claimed wedge as well as the purpose of the wedge for aiding in positioning a person. One having ordinary skill in the art would have found it obvious to duplicate the wedge DuDonis and utilize two wedges with the sheet of Persson as modified by Seeman with a reasonable expectation of success. Duplicating the components of a prior art device is a design consideration within the skill of the art and mere duplication of parts has no patentable significance unless a new and unexpected result is produced. In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960). MPEP 2144.04 VI.
Regarding Claim 5: Persson, as modified by Seeman and DuDonis, makes obvious the system of claim 1, wherein the tether strap further comprises a non-elastic portion (first piece of gripping material 22 of Seeman – Fig. 2) forming at least a portion of a length of the tether strap (as shown in Fig. 2 of Seeman), wherein the elastic portion is connected at one end to the sheet and the elastic portion is connected at another end to the non-elastic portion (see Fig. 2 of Seeman), and the non-elastic portion is configured for connection to the fastener (gripping material 24 of Seeman – “A second piece of gripping material 24, of the opposite surface type, is provided for attachment to the bed at various selected locations. In the illustrated embodiment, anchor piece 24 is of the hook-type, having a surface covered with upright hooks and the piece 22 attached to strap 14 is of the loop-type, having a surface covered with looped nylon strands which are engaged and gripped by the hooks on piece 24. Anchor piece 24 preferably has an adhesive backing for convenient attachment to the bed frame or box spring”).
Regarding Claim 6: Persson, as modified by Seeman and DuDonis, makes obvious the system of claim 1, further comprising a fastener strip (gripping material 24 of Seeman) having an adhesive portion (Col. 2, lines 56-58 of Seeman – “Anchor piece 24 preferably has an adhesive backing for convenient attachment to the bed frame or box spring”) adapted for adhesively connecting to the bed (Col. 2, lines 56-58 of Seeman – “Anchor piece 24 preferably has an adhesive backing for convenient attachment to the bed frame or box spring”), wherein the tether strap is releasably connectable to the fastener strip via hook and loop connection (Col. 2, lines 64-68 of Seeman -Col. 3, line 18 and Col. 3, line 22-24 of Seeman teach “To attach the hook and loop tape to strap 14” and “Straps 14 are then attached by simply pressing the gripping pieces 22 against the anchor pieces 24”).
Regarding Claim 7: Persson, as modified by Seeman and DuDonis, makes obvious the system of claim 1, wherein the first material is formed by a first piece of sheet material (slide sheet 14 of Persson) forming at least a majority portion of the bottom surface (see Figs. 1 and 2 of Persson showing bottom and top surfaces of the slide sheet of Persson) and the second material is formed by a second piece of sheet material (cover 16 of Persson) forming at least a majority portion of the top surface (see Figs. 1 and 2 of Persson showing bottom and top surfaces of the slide sheet of Persson), wherein the first and second pieces of sheet material are connected together to form the sheet (Col. 5, lines 40-41 of Persson – “The slide sheet 14 is stitched to the cover material 16.”).
Claims 4 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Persson et al. (US Patent No. 6,658,676 – hereinafter Persson) in view of Seeman (US Patent No. 4,662,016) further in view of DuDonis (US Patent No. 7,240,384) as evidenced by Pierce (US Patent No. 6,357,066).
Regarding Claim 4: Persson, as modified by Seeman and DuDonis, makes obvious system of claim 1. Persson does not explicitly state wherein the sheet is breathable to allow passage of heat, air, and moisture vapor through the sheet. However, Persson discloses the layers of the sheet formed of Dacron and cotton (see Col. 2, lines 34-49 of Persson). Pierce teaches that both cotton and DACRON are considered breathable materials (Col. 8, lines 7-13 of Pierce – “Alternatively, the pad may be covered with a breathable fabric such as cotton, nylon, polyester (e.g., DACRON, TERYLENE, or VYCRON), or polypropylene knit. The cover may be laminated to the foam material.”) The evidence provided by Pierce supports that Persson discloses a breathable sheet.
Claims 8 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Persson et al. (US Patent No. 6,658,676 – hereinafter Persson) in view of Seeman (US Patent No. 4,662,016) further in view of DuDonis (US Patent No. 7,240,384) further in view of Sherrod et al. (US PG Pub. 2003/0124928 – hereinafter Sherrod).
Regarding Claim 8: Persson, as modified by Vass and DuDonis, makes obvious the system of claim 1.
Persson, Seeman and DuDonis do not disclose further comprising: an absorbent pad configured to be positioned on top of the top surface of the sheet, wherein the second material resists sliding of the pad with respect to the top surface of the sheet, due to the higher coefficient of friction.
However, in the same field of endeavor, patient supports (bed pad as referred to in the abstract of Sherrod), Sherrod teaches further comprising: an absorbent pad (see the absorbent article described in the abstract of Sherrod which teaches “a bed pad” and paragraph [0019] which references an “absorbent article 20”) configured to be positioned on top of the top surface of the sheet (see at least paragraph [0001] and [0044] of Sherrod which teach “Absorbent articles, such as bed pads, are commonly used in hospitals, long term care facilities, and private homes to protect bedding, mattresses, cushions, seats and so forth, from being soiled by an individual” and “This improves the ability of the absorbent 20 to remain in position during use”), wherein the second material resists sliding of the pad with respect to the top surface of the sheet, due to the higher coefficient of friction (since Sherrod’s absorbent pad contains a skid resistant coating and the top surface of Persson includes a material with a higher friction than the lower surface the material would resist sliding of the pad with respect to the top surface of the sheet at least partially because of the upper surface of the device of Persson).
One having ordinary skill in the art before the date of invention would have found it obvious to combine Persson (directed toward a patient transfer sheet), Seeman (directed toward a tether), DuDonis (directed toward a bariatric patient positioning wedge), and Sherrod (directed toward an absorbent pad for positioning on a bedding) with a reasonable expectation of success. One having ordinary skill in the art would have been motivated to make such a combination in order to protect the article beneath the pad (see paragraph [0001] of Sherrod).
Claims 24 and 28-30 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Persson et al. (US Patent No. 6,658,676 – hereinafter Persson) in view of Seeman (US Patent No. 4,662,016), further in view of DuDonis (US Patent No. 7,240,384).
Regarding Claim 24: Persson discloses a system for use with a bed (bed shown in Fig. 4 of Persson) having a frame (frame of the bed shown in Fig. 4 of Persson) and a supporting surface (mattress 12 of Persson) supported by the frame (Fig. 4 of Persson), the system comprising: a sheet (slide sheet 14, 16 of Persson) having a bottom surface (bottom most surface of slide sheet 14 of Persson) adapted to be placed above the supporting surface of the bed (shown in Fig. 4 of Persson) and a top surface (top most surface of cover material 16 of Persson) opposite the bottom surface (Fig. 4 of Persson), the sheet comprising a first piece of a first material (slide sheet 14 of Persson formed of DACRON – Col. 3, lines 34-38 of Persson) having a first coefficient of friction (Col. 1, lines 44-47 of Persson - “having a lower surface which is of a relatively low friction material designed under the weight of a patient to slide relative to an upper surface of the mattress”), and a second piece (cover 16 of Persson) of a second material (Col. 2, lines 43-49 of Persson - “Typically the cover material is at least partly fabricated from a synthetic fabric including a cotton fabric such as calico. Generally the cover material is at least partly constructed of an absorbent fabric. Additionally the cover material may be formed in a pair of opposing synthetic fabric layers with a filler or padding material located therebetween”) connected to the first piece (Col. 5, lines 40-41 of Persson – “The slide sheet 14 is stitched to the cover material 16.”), the second material having a second coefficient of friction (Col. 2, lines 43-49 of Persson - “Typically the cover material is at least partly fabricated from a synthetic fabric including a cotton fabric such as calico. Generally the cover material is at least partly constructed of an absorbent fabric. Additionally the cover material may be formed in a pair of opposing synthetic fabric layers with a filler or padding material located therebetween” – note that all materials have a coefficient of friction), wherein the first piece forms at least a majority portion of the bottom surface and the second piece forms at least a majority portion of the top surface (see Figs. 1 and 2 of Persson showing bottom and top views of the slide sheet of Persson and the majority of each surface formed by the first and second materials respectively), and wherein the second coefficient of friction is higher than the first coefficient of friction such that the top surface provides greater slipping resistance than the bottom surface (see the Examiner’s Note below), a tether strap (grips 22 or accessory straps 50,52 of Persson) connected to the sheet and extending from the sheet (Fig. 4 of Persson – connected via the looping through grip 22 – Col. 4, line 33-35 of Persson), the sheet further comprising at least one first handle (a first grip portion 22 shown in Fig. 4 of Persson) located proximate a first edge (left most edge of the sheet 14 of Persson as viewed in Fig. 4) of the sheet (Fig. 4 of Persson) and at least one second handle (a second grip portion 22 shown in Fig. 4 of Persson) located proximate a second edge (right most edge of the sheet 14 of Persson as viewed in Fig. 4) of the sheet opposite the first edge (Fig. 4 of Persson) [….]
Examiner’s Note: Although Persson does not explicitly state that the cotton fabric forming the cover material has a coefficient higher than the coefficient of friction of the lower surface, since Dacron® is taught as being used as the relatively low friction material (Col. 3, lines 34-38 of Persson) and cotton is suggested as forming the upper surface it can be ascertained that the coefficient of friction of the cover is greater than that of the slide sheet of Persson.
Persson does not disclose wherein the tether strap comprises an elastic portion and a non-elastic portion each forming a portion of a length of the tether strap, wherein the elastic portion is connected at one end to the sheet and is connected at another end to the non-elastic portion, and the non-elastic portion is configured for connection to a fastener on the bed; a first wedge comprising a first wedge body formed at least partially of a compressible material and having a first base wall, a first ramp surface, and a first back wall, the first ramp surface joined to the first base wall to form a first apex and positioned at an angle of approximately 15-35 degrees to the first base wall, wherein the first ramp surface is at least partially formed of a third material having a third coefficient of friction and the first base wall is at least partially formed of a fourth material having a fourth coefficient of friction, and wherein the fourth coefficient of friction is higher than the third coefficient of friction; and a second wedge comprising a second wedge body formed at least partially of the compressible material and having a second base wall, a second ramp surface, and a second back wall, the second ramp surface joined to the second base wall to form a second apex and positioned at an angle of approximately 15-35 degrees to the second base wall, wherein the second ramp surface is at least partially formed of the third material and the second base wall is at least partially formed of the fourth material, wherein the first and second wedges are configured to be positioned under the sheet such that the first and second base walls confront the supporting surface of the bed and the first and second ramp surfaces confront the bottom surface of the sheet, and wherein the fourth material is adapted to resist sliding of the first and second wedges with respect to the supporting surface of the bed, due to the higher coefficient of friction.
However, solving the same problem of releasably attaching items to a person supporting surface (see the abstract of Seeman), Seeman teaches wherein the tether strap comprises an elastic portion (strap 14 of Seeman described of being an elastic stretch material) and a non-elastic portion (first piece of gripping material 22 of Seeman – Fig. 2 of Seeman) each forming a portion of a length of the tether strap (as shown in Fig. 2 of Seeman), wherein the elastic portion is connected at one end to the sheet (via clip 20 of Seeman) and is connected at another end to the non-elastic portion (see Fig. 2 of Seeman), and the non-elastic portion is configured for connection to a fastener on the bed (gripping material 24 of Seeman – “A second piece of gripping material 24, of the opposite surface type, is provided for attachment to the bed at various selected locations. In the illustrated embodiment, anchor piece 24 is of the hook-type, having a surface covered with upright hooks and the piece 22 attached to strap 14 is of the loop-type, having a surface covered with looped nylon strands which are engaged and gripped by the hooks on piece 24. Anchor piece 24 preferably has an adhesive backing for convenient attachment to the bed frame or box spring”).
One having ordinary skill in the art before the date of invention would have found it obvious to combine Persson (directed toward a patient transfer sheet) and Seeman (directed toward an elastic tether strap) with a reasonable expectation of success by forming the tether straps of Persson with an elastic portion connected to the sheet and a non-elastic portion at the end for attachment to a fastener connected to a bedframe.
Persson and Seeman do not disclose or make obvious a first wedge comprising a first wedge body formed at least partially of a compressible material and having a first base wall, a first ramp surface, and a first back wall, the first ramp surface joined to the first base wall to form a first apex and positioned at an angle of approximately 15-35 degrees to the first base wall, wherein the first ramp surface is at least partially formed of a third material having a third coefficient of friction and the first base wall is at least partially formed of a fourth material having a fourth coefficient of friction, and wherein the fourth coefficient of friction is higher than the third coefficient of friction; and a second wedge comprising a second wedge body formed at least partially of the compressible material and having a second base wall, a second ramp surface, and a second back wall, the second ramp surface joined to the second base wall to form a second apex and positioned at an angle of approximately 15-35 degrees to the second base wall, wherein the second ramp surface is at least partially formed of the third material and the second base wall is at least partially formed of the fourth material, wherein the first and second wedges are configured to be positioned under the sheet such that the first and second base walls confront the supporting surface of the bed and the first and second ramp surfaces confront the bottom surface of the sheet, and wherein the fourth material is adapted to resist sliding of the first and second wedges with respect to the supporting surface of the bed, due to the higher coefficient of friction.
However, in the same field of endeavor, patient positioning (see the abstract of DuDonis), DuDonis teaches a first wedge (positioning aid of Fig. 9 of DuDonis) comprising a first wedge body (Fig. 9 of DuDonis) formed at least partially of a compressible material (foam cushion 1031 of DuDonis – Col. 8, lines 18-21 of DuDonis) and having a first base wall (1015 of DuDonis – Fig. 9), a first ramp surface (patients panel 1013 of DuDonis – Fig. 9), and a first back wall (caregiver’s panel 1014 of DuDonis – Fig. 9), the first ramp surface joined to the first base wall to form a first apex (shown in Fig. 9 of DuDonis) and positioned at an angle of approximately 15-35 degrees to the first base wall (Col. 5, lines 59-64 of DuDonis – “In the first and second embodiments of the positioning aid the angle formed by the bottom panel 15 and 215 and the patient's panel 13 and 215 is approximately 30.degree., .alpha. on FIG. 5. This allows the patient to be maintained at a lateral inclined position of approximately 30.degree. as recommended by the National Pressure Ulcer Advisory panel.”), wherein the first ramp surface is at least partially formed of a third material having a third coefficient of friction (Col. 9, lines 48-52 of DuDonis – “ In the embodiments, the upper sides of the cover, that is, the side to which the patient is exposed, are made of friction and shear reducing fabrics, such as nylon or polyurethane fabrics. The use of friction and shear reducing fabrics alleviates and minimizes trauma to the skin of the patient.”) and the first base wall is at least partially formed of a fourth material having a fourth coefficient of friction (Col. 9, lines 53-59 of DuDonis – “In the embodiments, a variety of materials may be used as the non-slip coating applied to the side of the bottom panel which makes contact with the sheet and mattress of the patient positioning aid cover. Any durable suitable material which provides a slip-resistant or non-slip effect which prevents and retards the sliding of the positioning aid on the surface of the bedsheet may be used.”), and wherein the fourth coefficient of friction is higher than the third coefficient of friction (see Col. 9, lines 48-59 of DuDonis which teaches a lower friction surface on the ramp surface of the wedge and a higher friction surface on the base wall).
DuDonis does not explicitly disclose the use of the wedge with the sheet. However, presented with the teachings of both Persson (directed toward a patient transfer sheet), Seeman (directed toward a tether) and DuDonis (directed toward a bariatric patient positioning wedge), one having ordinary skill in the art before the date of invention would have found it obvious to utilize the inventions together since both Persson and DuDonis are concerned with aiding a caregiver in positioning a patient. DuDonis teaches the benefit of using wedges to elevate and assist in turning a patient (Col. 1, lines 38-42 of DuDonis – “The immobile bariatric patient population has special needs for a lateral turning and positioning device due to the tendency of the positioning devices to migrate away or "pop out" from behind the patient while in use.”) and Persson teaches the use of sliding sheets to aid in turning/positioning of the patient (claim 1). One would have been motivated to combine Persson and DuDonis since DuDonis provides the benefit of aiding caregivers with the tasks of manipulation of bariatric patients (Col. 44-46 of DuDonis).
DuDonis does not explicitly disclose a second wedge comprising a second wedge body formed at least partially of the compressible material and having a second base wall, a second ramp surface, and a second back wall, the second ramp surface joined to the second base wall to form a second apex and positioned at an angle of approximately 15-35 degrees to the second base wall, wherein the second ramp surface is at least partially formed of the third material and the second base wall is at least partially formed of the fourth material, wherein the first and second wedges are configured to be positioned under the sheet such that the first and second base walls confront the supporting surface of the bed and the first and second ramp surfaces confront the bottom surface of the sheet, and wherein the fourth material is adapted to resist sliding of the first and second wedges with respect to the supporting surface of the bed, due to the higher coefficient of friction.
However, since claim 24 requires an identical second wedge to the first wedge of claim 24, and DuDonis teaches the features of the claimed first wedge as well as the purpose of the wedge for aiding in positioning a person. One having ordinary skill in the art would have found it obvious to duplicate the wedge DuDonis and utilize two wedges with the sheet of Persson as modified by Vass with a reasonable expectation of success. Duplicating the components of a prior art device is a design consideration within the skill of the art and mere duplication of parts has no patentable significance unless a new and unexpected result is produced. In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960). MPEP 2144.04 VI.
Regarding Claim 28: Persson in view of Seeman and DuDonis make obvious system of claim 24, further comprising a fastener strip having an adhesive portion adapted for adhesively connecting to the bed (gripping material 24 of Seeman – “A second piece of gripping material 24, of the opposite surface type, is provided for attachment to the bed at various selected locations. In the illustrated embodiment, anchor piece 24 is of the hook-type, having a surface covered with upright hooks and the piece 22 attached to strap 14 is of the loop-type, having a surface covered with looped nylon strands which are engaged and gripped by the hooks on piece 24. Anchor piece 24 preferably has an adhesive backing for convenient attachment to the bed frame or box spring”), wherein the non-elastic portion of the tether strap is releasably connectable to the fastener strip via hook and loop connection (gripping material 24 of Seeman – “A second piece of gripping material 24, of the opposite surface type, is provided for attachment to the bed at various selected locations. In the illustrated embodiment, anchor piece 24 is of the hook-type, having a surface covered with upright hooks and the piece 22 attached to strap 14 is of the loop-type, having a surface covered with looped nylon strands which are engaged and gripped by the hooks on piece 24. Anchor piece 24 preferably has an adhesive backing for convenient attachment to the bed frame or box spring”),
Regarding Claim 29: Persson in view of Seeman and DuDonis make obvious the system of claim 24, wherein the first and second wedges have the third material connected to the first and second ramp surfaces and the fourth material connected to the first and second base walls (see Col. 8, lines 13-18 of DuDonis which discuss the cover formed of different materials and note that the Examiner considers the materials connected to the first and second base walls via the cover).
Regarding Claim 30: Persson in view of Seeman and DuDonis make obvious the system of claim 29, wherein the third material is wrapped at least partially around the first and second apexes (see the Examiner’s Note below), such that the third material forms a portion of each of the first and second base wall (claim 1 of DuDonis – “and the cushion having a cover comprised of a moisture proof low friction and shear reducing material, the cover having a high friction polyurethane, butyl rubber, or vinyl coating on the portion of the cover covering the bottom panel of the cushion.”).
Examiner Note: The Examiner considers the cover formed of a low friction material which has a coated bottom panel to be wrapped around the apex.
Claims 25 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Persson et al. (US Patent No. 6,658,676 – hereinafter Persson) in view of Seeman (US Patent No. 4,662,016) further in view of DuDonis (US Patent No. 7,240,384) further in view of Sherrod et al. (US PG Pub. 2003/0124928 – hereinafter Sherrod).
Regarding Claim 25: Persson in view of Seeman and DuDonis make obvious the system of claim 24.
None of Persson, Seeman or DuDonis disclose or teach further comprising: an absorbent pad at least partially formed of a fifth material, the pad being positioned on top of the top surface of the sheet, wherein the second material resists sliding of the pad with respect to the top surface of the sheet, due to the higher coefficient of friction.
However, in the same field of endeavor, patient supports (bed pad as referred to in the abstract of Sherrod), Sherrod teaches further comprising: an absorbent pad (see the absorbent article described in the abstract of Sherrod which teaches “a bed pad” and paragraph [0019] which references an “absorbent article 20”) at least partially formed of a fifth material (fabrics used to form the absorbent article as described in paragraph [0024] of Sherrod), the pad being positioned on top of the top surface of the sheet (see at least paragraph [0001] and [0044] of Sherrod which teach “Absorbent articles, such as bed pads, are commonly used in hospitals, long term care facilities, and private homes to protect bedding, mattresses, cushions, seats and so forth, from being soiled by an individual” and “This improves the ability of the absorbent 20 to remain in position during use”), wherein the second material resists sliding of the pad with respect to the top surface of the sheet (since Sherrod’s absorbent pad contains a skid resistant coating and the top surface of Persson includes a material with a higher friction than the lower surface the material would resist sliding of the pad with respect to the top surface of the sheet at least partially due to the higher coefficient of friction).
It would have been obvious to one having ordinary skill in the art before the time of invention to combine Persson (directed toward a patient transfer sheet), Seeman (directed toward a tether), DuDonis (directed toward wedges for assisting movement of a patient) and Sherrod (directed towards an absorbent pad)with a reasonable expectation of success by incorporating an absorbent pad configured to sit on an upper surface of the patient transfer device of Persson as modified. One having ordinary skill in the art would have been motivated to make such a combination because an absorbent pad protects the article beneath it (see paragraph [0001] of Sherrod).
Claim 26 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Persson et al. (US Patent No. 6,658,676 – hereinafter Persson) in view of Seeman (US Patent No. 4,662,016) further in view of DuDonis (US Patent No. 7,240,384) further in view of Sherrod et al. (US PG Pub. 2003/0124928 – hereinafter Sherrod) as evidenced by Pierce (US Patent No. 6,357,066).
Regarding Claim 26: Persson, as modified by Seeman and DuDonis, makes obvious system of claim 25. Persson does not explicitly state wherein the sheet is breathable to allow passage of heat, air, and moisture vapor through the sheet and the absorbent pad is breathable to allow passage of heat, air, and moisture vapor through the absorbent pad.
However, Persson discloses the layers of the sheet formed of Dacron and cotton (see Col. 2, lines 34-49 of Persson). Pierce teaches that both cotton and DACRON are considered breathable materials (Col. 8, lines 7-13 of Pierce – “Alternatively, the pad may be covered with a breathable fabric such as cotton, nylon, polyester (e.g., DACRON, TERYLENE, or VYCRON), or polypropylene knit. The cover may be laminated to the foam material.”) Therefore, Pierce provides support for the disclosure of the materials of Persson being breathable.
Claims 27 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Persson et al. (US Patent No. 6,658,676 – hereinafter Persson) in view of Seeman (US Patent No. 4,662,016) further in view of DuDonis (US Patent No. 7,240,384) as evidenced by Pierce (US Patent No. 6,357,066).
Regarding Claim 27: Persson as modified makes obvious the system of claim 24. Persson does not state wherein the sheet is breathable to allow passage of heat, air, and moisture vapor through the sheet.
However, Persson discloses the layers of the sheet formed of Dacron and cotton (see Col. 2, lines 34-49 of Persson). Pierce teaches that both cotton and DACRON are considered breathable materials (Col. 8, lines 7-13 of Pierce – “Alternatively, the pad may be covered with a breathable fabric such as cotton, nylon, polyester (e.g., DACRON, TERYLENE, or VYCRON), or polypropylene knit. The cover may be laminated to the foam material.”) Therefore, Pierce provides support for the disclosure of the materials of Persson being breathable.
Claims 10 (alternatively) is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Walker (US Patent No. 6,560,793) in view of DuDonis (US PG Pub. No. 2005/0005358 – hereinafter DuDonis).
Regarding Claim 10: Walker discloses the system of claim 9. Walker does not disclose further comprising a wedge comprising a wedge body formed at least partially of a compressible material and having a base wall, a ramp surface, and a back wall, the ramp surface joined to the base wall to form an apex and positioned at an angle of approximately 15-35 degrees to the base wall, wherein the ramp surface has a low friction surface forming at least a portion of the ramp surface and the base wall has a high friction surface forming at least a portion of the base wall.
However, in the same field of endeavor patient turning aides (see the abstract of DuDonis), DuDonis further teaches a wedge (Fig. 9 of DuDonis) comprising a wedge body (wedge bodies of DuDonis) formed at least partially of a compressible material (foam cushion 1031 of DuDonis – Col. 8, lines 18-21 of DuDonis) and having a base wall, (1015 of DuDonis – Fig. 9), a ramp surface (patients panel 1013 of DuDonis – Fig. 9), and a back wall (caregiver’s panel 1014 of DuDonis – Fig. 9), the ramp surface joined to the base wall to form an apex (shown in Fig. 9 of DuDonis) and positioned at an angle of approximately 15-35 degrees to the base wall (Col. 5, lines 59-64 of DuDonis – “In the first and second embodiments of the positioning aid the angle formed by the bottom panel 15 and 215 and the patient's panel 13 and 215 is approximately 30.degree., .alpha. on FIG. 5. This allows the patient to be maintained at a lateral inclined position of approximately 30.degree. as recommended by the National Pressure Ulcer Advisory panel.”), wherein the ramp surface has a low friction surface (Col. 9, lines 48-52 of DuDonis – “ In the embodiments, the upper sides of the cover, that is, the side to which the patient is exposed, are made of friction and shear reducing fabrics, such as nylon or polyurethane fabrics. The use of friction and shear reducing fabrics alleviates and minimizes trauma to the skin of the patient.”) forming at least a portion of the ramp surface (Col. 9 of DuDonis) and the base wall has a high friction surface forming at least a portion of the base wall (Col. 9, lines 53-59 of DuDonis – “In the embodiments, a variety of materials may be used as the non-slip coating applied to the side of the bottom panel which makes contact with the sheet and mattress of the patient positioning aid cover. Any durable suitable material which provides a slip-resistant or non-slip effect which prevents and retards the sliding of the positioning aid on the surface of the bedsheet may be used.”)
DuDonis does not explicitly disclose the use of the wedge with the sheet. However, presented with the teachings of both Walker (directed toward a patient transfer sheet) and DuDonis (directed toward a bariatric patient positioning wedge), one having ordinary skill in the art before the date of invention would have found it obvious to utilize the inventions together since both Walker and DuDonis are concerned with aiding a caregiver in positioning a patient. DuDonis teaches the benefit of using wedges to elevate and assist in turning a patient (Col. 1, lines 38-42 of DuDonis – “The immobile bariatric patient population has special needs for a lateral turning and positioning device due to the tendency of the positioning devices to migrate away or "pop out" from behind the patient while in use.”) and Walker teaches the use of sliding sheets to aid in turning/positioning of the patient. One would have been motivated to combine Walker and DuDonis since DuDonis provides the benefit of aiding caregivers with the tasks of manipulation of bariatric patients (Col. 44-46 of DuDonis).
Claim claim 13 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Walker (US Patent No. 6,560,793) in view of DuDonis (US PG Pub. No. 2005/0005358 – hereinafter DuDonis) further in view of Saro et al. (US Patent No. 5,448,790).
Regarding Claim 13: Walker in view of DuDonis make obvious the system of claim 10, wherein the low friction surface of the sheet and the low friction surface of the wedge are formed of a same first material (paragraph [0087] of DuDonis – “the upper sides of the cover, that is, the side to which the patient is exposed, are made of friction and shear reducing fabrics, such as nylon or polyurethane fabrics” and Col. 4, lines 27-30 of Walker – “the draw sheet comprise a low friction material, such as silk, polyester, polypropylene, satin, nylon or Gore-Tex.RTM”). Walker and DuDonis do not explicitly disclose the high friction surface of the sheet and the high friction surface of the wedge are formed of a same second material.
However, in the same field of endeavor, patient positioning devices (see the abstract of Saro), Saro teaches utilizing a high friction material on the bottom of protruding supports to hold the support relative to the support surface and the high friction material being hook and loop fasteners (see 90a of Saro including a hook fastener on the bottom surface).
One having ordinary skill in the art before the date of invention would have found it obvious to combine Walker (directed toward a patient positioning sheet), DuDonis (a patient positioning wedge) and Saro (directed toward a system for maintaining the position of a patient positioning device on another) with a reasonable expectation of success by utilizing a fastener on the bottom of the wedge of DuDonis for maintaining the position of the wedge on the support surface. One having ordinary skill in the art would have been motivated to make such a combination because the use of hook and loop fasteners facilitate mounting of the positioning devices on a surface of a cushion (Col. 10, lines 31-34 of Saro) and help maintain a desired position of a user (see the abstract of Saro).
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 1-33 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-27 of U.S. Patent No. 8,984,681. Although the claims at issue are not identical, they are not patentably distinct from each other because the limitations are taught encompassed or made obvious by the claims. The second wedge and absorbent sheet are not taught by U.S. Patent No. 8,984,681 but are made obvious by DuDonis and Sherrod for the same reasons as discussed in the current claim rejections.
Claims 1-33 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-35 of US Patent No. 8,850,634 to Ponsi et al. Although the claims at issue are not identical, they are not patentably distinct from each other because the limitations are taught encompassed or made obvious by the claims.
Claims 1-33 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-16 of U.S. Patent No. 12,370,103. Although the claims at issue are not identical, they are not patentably distinct from each other because the limitations are taught encompassed or made obvious by the claims. The second wedge and elastic tether straps as well as fasteners are not taught by U.S. Patent No. 12,370,103 but are made obvious by DuDonis and Seeman for the same reasons as discussed in the current claim rejections.
Allowable Subject Matter
Claims 31 is rejected under the ground of non-statutory double patenting above but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims and after receipt of an approved terminal disclaimer.
The following is a statement of reasons for the indication of allowable subject matter:
Regarding Claim 31: Persson in view of DuDonis make obvious the system of claim 10. Persson and DuDonis together do not disclose or make obvious wherein the low friction surface of the sheet and the low friction surface of the wedge are formed of a same first material and the high friction surface of the sheet and the high friction surface of the wedge are formed of a same second material. One having ordinary skill could reasonably choose to form the low friction surfaces of the same material since both of the low surfaces of Persson and DuDonis are concerned about reducing shear between two items. However, it would not be reasonable to use the same material to form the high friction surface of the sheet and the high friction surface of the wedge. The high friction surface of the wedge is described as being a non-slip coating applied to prevent and retard sliding of the aid on the surface of the bedsheet. DuDonis then lists different no-slip materials including vinyl backing mats and nitrile rubber gripper backing (paragraph [0088] of DuDonis). Person’s upper layer is intended to provide comfort and absorption for a person placed on the sheet. Persson discloses “As shown in FIG. 1 the rectangular cover material 16 extends beyond the boundaries of the slide sheet 14. The cover material 16 is in this example fabricated from a synthetic fabric such as calico which advantageously provides an absorbent surface. The cover material 16 may be fabricated from a pair of opposing synthetic fabric layers with a filler or padding material located in between. The filler or padding material is designed for both comfort and to provide an absorbent layer and may be in the form of a doona or include a natural wool fill. An exposed upper surface of the cover material 16 defines a resting surface on which a patient lies.” Altering either the upper surface of Persson to be formed of a high friction material taught by DuDonis or altering DuDonis to be a synthetic fabric as taught by Persson would destroy the inventions as intended to be used. Additionally, the Examiner notes that claim 24 requires the majority of the top surface formed of the second piece. These limitations cannot be taught by Walker since the fasteners cannot be a majority of the top surface.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
US Patent No. 3,389,411 to Emery is cited for teaching a foam wedge and cover having different friction properties.
US Patent No. 4,908,889 to Lonardo is cited for teaching a patient positioning sheet with tethers.
US Patent No. 10,154,741 to Duck is cited for teaching a patient sheet with handles.
US Patent No. 5,280,657 to Stagg is cited for teaching fasteners connectable to portions of a hospital bed for connection to tether straps.
US Patent No. 5,068,931 to Smith is cited for teaching positioning a patient with straps and a drawsheet and a pillow placed under the patient for turning (Fig. 6).
US PG Pub. No. 2002/0083522 to Sverdlik et al. is cited for teaching a fastener for a tether.
US PG Pub. 2005/0138727 to Faux et al. is cited for teaching a tether with a coupler for attaching to a bed frame and the tether being stretchable.
US Patent No. 2,777,138 to Gallagher is cited for teaching a bracket for fastening a tether to hold a body support to a frame.
US PG Pub. No. 2011/0296609 to Giap is cited for teaching a patient positioning device with a slippery bottom surface and a non-slip pad on an upper surface for preventing the patient from sliding.
US PG Pub. No. 2009/0183309 to Stinson is cited for teaching a patient positioning device with an absorbent pad.
US Patent No. 3,521,308 to Fowler et al. is cited for teaching a bracket for connection of straps for retaining a surface.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AMANDA L BAILEY whose telephone number is (571)272-8476. The examiner can normally be reached M-F 7:30 AM-4:30 PM.
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/AMANDA L BAILEY/Examiner, Art Unit 3673
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