DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Specification
The disclosure is objected to because of the following informalities: On page 2, in paragraph 0001, line 2: The phrase --now U.S. Patent No. 12,419,433,-- should be inserted after the phrase “November 22, 2024,”.
Appropriate correction is required.
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); and In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on 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 1-7, 9-18 and 20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14, 17 and 18 of U.S. Patent No. 12,419,433. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1-7, 9-18 and 20 are generic to all that is recited in claims 1-14, 17 and 18 of U.S. Patent No. 12,419,433. In other words, claims 1-14, 17 and 18 of U.S. Patent No. 12,419,433 fully encompass the subject matter of claims 1-7, 9-18 and 20 and therefore anticipate claims 1-7, 9-18 and 20. Since claims 1-7, 9-18 and 20 are anticipated by claims 1-14, 17 and 18 of the patent, they are not patentably distinct from claims 1-14, 17 and 18. Thus the invention of claims 1-14, 17 and 18 of the patent is in effect a “species” of the “generic” invention of claims 1-7, 9-18 and 20. It has been held that the generic invention is anticipated by the species, see In re Goodman, 29 USPQ2d 2010 (Fed. Cir. 1993). Since claims 1-7, 9-18 and 20 are anticipated (fully encompassed) by claims 1-14, 17 and 18 of the patent, claims 1-7, 9-18 and 20 are not patentably distinct from claims 1-14, 17 and 18, regardless of any additional subject matter present in claims 1-14, 17 and 18.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 2, 4-7, 9, 11, 12 and 15-17 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by U.S. Patent Application Publication No. 2025/0176732 to Mostafa et al.
The applied reference has a common Applicant with the instant application. Based upon the earlier effectively filed date of the reference, it constitutes prior art under 35 U.S.C. 102(a)(2). This rejection under 35 U.S.C. 102(a)(2) might be overcome by: (1) a showing under 37 CFR 1.130(a) that the subject matter disclosed in the reference was obtained directly or indirectly from the inventor or a joint inventor of this application and is thus not prior art in accordance with 35 U.S.C. 102(b)(2)(A); (2) a showing under 37 CFR 1.130(b) of a prior public disclosure under 35 U.S.C. 102(b)(2)(B) if the same invention is not being claimed; or (3) a statement pursuant to 35 U.S.C. 102(b)(2)(C) establishing that, not later than the effective filing date of the claimed invention, the subject matter disclosed in the reference and the claimed invention were either owned by the same person or subject to an obligation of assignment to the same person or subject to a joint research agreement.
With respect to claim 1, Mostafa et al. ‘732 shows the claimed limitations of a cushion (100), comprising; an array of interconnected columns (10) having a height extending through at least a portion of a thickness of the cushion, at least one column of the array of interconnected columns (10) comprising: at least one wall (10w) defined from a compressible, resilient material, and a firmness-defining feature (20) structured as a spine protruding from the at least one wall (10w) and extending uniformly along a height of the at least one wall (as shown in Figures 1, 2C & 3 and as described on page 1, in paragraph 0021 and on page 2, in paragraphs 0021, 0023 & 0024).
With respect to claims 2 and 4, the reference discloses a condition wherein the at least one column of the array of interconnected columns (10) further comprises: a void (10v) at least partially defined by the at least one wall (10w); and wherein the spine (20) protrudes outward and away from the void (10v) (as shown in Figure 1 and as described on page 1, in paragraph 0021 and on page 2, in paragraphs 0021-0023).
With respect to claims 5-7, the reference further discloses wherein the at least one wall (10w) comprises an inner surface (11) defining the void (10v) and an outer surface (12) opposite the inner surface, and wherein the spine (20) protrudes from at least one of the inner surface or the outer surface (as shown in Figure 1 and as described on page 1, in paragraph 0021 and on page 2, in paragraphs 0021-0023); wherein the void (10v) extends through an entire height of the at least one column (10) (as described on page 1, in paragraph 0021 and on page 2, in paragraphs 0021 & 0022); and wherein the firmness-defining feature (20) extends along an entire height of the at least one wall (10w) (as shown in Figure 3 and as described on page 2, in paragraphs 0027 & 0028 and on page 3, in paragraph 0029).
With respect to claim 9, the reference shows the claimed limitations of a cushion (100), comprising: an array of interconnected columns (10) having a height extending through at least a portion of a thickness of a cushion (100), at least one column of the array of interconnected columns (10) including: at least one wall (10w) comprising an inner surface (11) and an outer surface (12) opposite the inner surface, and a plurality of firmness-defining features (20), each of the plurality of firmness-defining features structured as a spine protruding from the at least one wall (10w) and uniformly extending along the at least one wall (as shown in Figures 1, 2C & 3 and as described on page 1, in paragraph 0021 and on page 2, in paragraphs 0021-0024).
With respect to claims 11 and 12, the reference discloses the claimed limitations wherein the at least one wall (10w) and the plurality of firmness-defining features (20) are formed from a compressible, resilient material (as described on page 1, in paragraph 0021 and on page 2, in paragraphs 0021 & 0023); and wherein a position of each of the plurality of firmness-defining features (20) relative to another of the plurality of firmness-defining features is defined by a central angle (as shown in Figures 1 & 2C and on page 2, in paragraph 0023).
With respect to claim 15, the reference shows the claimed limitations of a method of method of providing a cushion (100), the method comprising: configuring an array of interconnected columns (10) extending through at least a portion of a thickness of the cushion, configuring each column of the array of interconnected columns to include at least one wall (10w) that is compressible and resilient, and configuring at least one column of the array of interconnected columns (10) to include a firmness-defining feature (20) structured as a spine protruding from the at least one wall (10w) and extending uniformly along a height of the at least one wall of the at least one column (as shown in Figures 1, 2C & 3 and as described on page 1, in paragraph 0021 and on page 2, in paragraphs 0021, 0023 & 0024).
With respect to claims 16 and 17, the reference discloses the claimed limitations wherein configuring the at least one column of the array of interconnected columns (10) to include the firmness-defining feature (20) comprises configuring a group of columns of the array of interconnected columns to include a plurality of firmness-defining features (as shown in Figures 1 & 2C and as described on page 2, in paragraph 0023); and wherein configuring the at least one column of the array of interconnected columns (10) to include the firmness-defining feature (20) comprises configuring the firmness-defining feature to define a buckling behavior (as shown in Figure 7 and as described on page 4, in paragraphs 0042, 0043 & 0045 and on page 5, in paragraphs 0045 & 0049).
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 8, 13, 14, 18 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Mostafa et al. ‘732. With respect to claims 8 and 19, Mostafa et al. ‘732 does not specifically disclose a condition wherein the spine (20) has an at least partial semicircular cross-sectional shape. The skilled artisan would have found it obvious before the effective filing date of the claimed invention to provide the cushion of Mostafa et al. ‘732 with a spine having an at least partial semicircular cross-sectional shape, since such a modification would have been generally recognized as being within the level of ordinary skill in the art.
With respect to claim 13, Mostafa et al. ‘732 does not specifically disclose a condition wherein the plurality of firmness-defining features (20) comprises a first pair of firmness-defining features and a second pair of firmness-defining features, wherein a first central angle between a first firmness-defining feature of the first pair and a second firmness-defining feature of the first pair is less than a second central angle between the first pair and the second pair. The skilled artisan would have found it obvious before the effective filing date of the claimed invention to provide the cushion of Mostafa et al. ‘732 with a first pair of firmness-defining features and a second pair of firmness-defining features, wherein a first central angle between a first firmness-defining feature of the first pair and a second firmness-defining feature of the first pair is less than a second central angle between the first pair and the second pair, since altering the respective positions of the plurality of firmness-defining features which extend along the at least one wall of the at least one column also would have been generally recognized as being within the level of ordinary skill in the art.
With respect to claim 14, Mostafa et al. ‘732 does not specifically disclose a condition wherein the array of interconnected columns (10) defines a plurality of zones, wherein at least one zone of the plurality of zones includes columns that differ from columns of another zone of the plurality of zones. The skilled artisan would have found it obvious before the effective filing date of the claimed invention to provide the cushion of Mostafa et al. ‘732 with an array of interconnected columns which defines a plurality of zones, wherein at least one zone of the plurality of zones includes columns that differ from columns of another zone of the plurality of zones, since modifying at least one of the various structural properties of the columns (such as material composition, size, or shape) also would have been generally recognized as being within the level of ordinary skill in the art.
With respect to claim 18, Mostafa et al. ‘732 does not specifically disclose a condition wherein configuring the firmness-defining feature (20) comprises configuring the firmness-defining feature to at least partially define at least one of a frequency or an amplitude of an energy pulse released by the at least one column (10) as the at least one column buckles. The skilled artisan would have found it obvious before the effective filing date of the claimed invention to provide the cushion of Mostafa et al. ‘732 with a firmness-defining feature which is configured to at least partially define at least one of a frequency or an amplitude of an energy pulse released by the at least one column as the at least one column buckles, since modifying the buckling characteristics of the at least one column or the firmness-defining feature also would have been generally recognized as being within the level of ordinary skill in the art.
Conclusion
The prior art made of record and not relied upon is considered pertinent to Applicant's disclosure: Campbell et al. ‘654, Acharya et al. ‘646, Grutta et al. ‘385, Grutta et al. ‘301, Acharya et al. ‘630 and Mostafa et al. ‘440.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ROBERT G SANTOS whose telephone number is (571)272-7048. The examiner can normally be reached Monday-Friday 9am-11:30am and 2pm-7:30pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, Applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Justin C Mikowski can be reached at 571-272-8525. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ROBERT G SANTOS/Primary Examiner, Art Unit 3673
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