DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Priority
The later-filed application must be an application for a patent for an invention which is also disclosed in the prior application (the parent or original nonprovisional application or provisional application). The disclosure of the invention in the parent application and in the later-filed application must be sufficient to comply with the requirements of 35 U.S.C. 112(a) or the first paragraph of pre-AIA 35 U.S.C. 112, except for the best mode requirement. See Transco Products, Inc. v. Performance Contracting, Inc., 38 F.3d 551, 32 USPQ2d 1077 (Fed. Cir. 1994).
The disclosure of the prior-filed application, Application Nos. 19/273913, 18/087526, 17/138399, 15/221098, 13/838952 fails to provide adequate support or enablement in the manner provided by 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph for one or more claims of this application. Claim 44 requires “the first layer second surface has a third coefficient of friction less than the first coefficient of friction; and the second layer first surface as a fourth coefficient of friction less than the first coefficient of friction” but this limitation is not taught in any of the disclosures of the previous applications listed above. Claim 45 requires “the third coefficient of friction is equal to the second coefficient of friction; and the fourth coefficient of friction is equal to the second coefficient of friction” but this limitation is not taught in any of the disclosures of the previous applications listed above. Claim 51 requires “wherein the second coefficient of friction is equal to the third coefficient of friction.” but this limitation is not taught in any of the disclosures of the previous applications listed above.
Claim 52 requires “wherein the first layer second surface has a fourth coefficient of friction less than the first coefficient of friction” but this limitation is not taught in any of the disclosures of the previous applications listed above.
Claim 53 requires “wherein the fourth coefficient of friction is equal to at least one of the second coefficient of friction or the third coefficient of friction.” but this limitation is not taught in any of the disclosures of the previous applications listed above.
None of the original disclosures of the applications provided above discuss the coefficient of friction of the first layer second surface or the second layer first surface or the relationship between the respective coefficient of frictions of the first layer second surface and the second layer first or second surfaces.
Claim Objections
Claim 44 is objected to because of the following informalities: In Claim 44, line 4, the phrase “the second layer first surface as a fourth” should be changed to read - - the second layer first surface has a fourth - -. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 37 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
The term “appropriate plastic” in claim 37 is a relative term which renders the claim indefinite. The term “appropriate plastic” is 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 what would be deemed an appropriate plastic and therefore makes it impossible to determine the meets and bounds of the claim. For purpose of examination the Examiner considers any plastic to be considered an appropriate plastic.
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) 50-51 is/are rejected under pre-AIA 35 U.S.C. 102(b) as being anticipated by Treat (US Patent No. 3,829,914)
Regarding Claim 50: Treat discloses the sheet (elongated flexible sheet 20 of Treat – abstract) comprising: a first layer (upper layer 22 of Treat) comprising: a first layer first surface (uppermost surface of layer 22 shown in Fig. 5 of Treat) having a first coefficient of friction (Treat Col. 3, lines 60-65 - “upper layer 22 is formed of a fibrous material….This layer 22 forms a friction-type top surface which is relatively rough, for frictionally supporting the body of the patient”), and a first layer second surface (lowermost surface of layer 22 shown in Fig. 5 of Treat) opposite the first layer first surface (Fig. 5 of Treat); and a second layer (lower layer 24 – Fig. 5 and 7 of Treat) comprising: a second layer first surface (uppermost surface of layer 24 as shown in Fig. 5 of Treat and abutting the lower surface of layer 22) coupled to the first layer second surface (Fig. 5 of Treat), the second layer first surface having a second coefficient of friction (inherent material of surfaces) less than the first coefficient of friction (Col. 3, line 63-Col. 4 line 4 of Treat - “This layer 22 forms a friction-type top surface which is relatively rough, for frictionally supporting the body of the patient. Lower layer 24 preferably is formed of suitable plastic material with little or no stretch, and with or without internal reinforcement, such as polyethylene for example, and thus forms a low friction or smooth, slippery bottom surface for sliding along the bed.”), and a second layer second surface having a third coefficient of friction (inherent material of surfaces) less than the first coefficient of friction (Col. 3, line 63-Col. 4 line 4 of Treat - “This layer 22 forms a friction-type top surface which is relatively rough, for frictionally supporting the body of the patient. Lower layer 24 preferably is formed of suitable plastic material with little or no stretch, and with or without internal reinforcement, such as polyethylene for example, and thus forms a low friction or smooth, slippery bottom surface for sliding along the bed.”).
Examiner’s Note: Treat teaches “a lower layer 24 preferably formed of a suitable plastic material with little or no stretch, and with or without internal reinforcement, such as polyethylene for example, and thus forms a low friction or smooth, slippery bottom surface.” Treat does not explicitly disclose the frictional properties of each surface of the lower layer 24 but because the lower layer is described as being formed of a material which forms a lower slippery surface and because Treat teaches the need for a higher friction surface added to the upper surface of lower layer 24 to maintain the position of a patient on the sheet, the Examiner considers the upper and lower surfaces of the lower layer 24 to have the same frictional properties which is old and well known in the art.
Regarding Claim 51: Treat discloses the sheet of claim 50, wherein the second coefficient of friction is equal to the third coefficient of friction (see the Examiner’s note above which explains that based on the disclosure of Treat the Examiner considers the coefficients of friction of the surfaces of the lower layer to be the same.)
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 patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim 34, 38-40 and 42-43 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Treat (US Patent No. 3,829,914) in view of Bromberger et al. (AU 2008243264 – hereinafter Bromberger).
Regarding Claim 34: Treat discloses a sheet (elongated flexible sheet 20 of Treat – abstract) comprising: a first layer (upper layer 22 of Treat) comprising: a first layer first surface (uppermost surface of layer 22 shown in Fig. 5 of Treat) having a first coefficient of friction (Treat Col. 3, lines 60-65 - “upper layer 22 is formed of a fibrous material….This layer 22 forms a friction-type top surface which is relatively rough, for frictionally supporting the body of the patient”), and a first layer second surface (lowermost surface of layer 22 shown in Fig. 5 of Treat) opposite the first layer first surface (Fig. 5 of Treat); and a second layer (lower layer 24 – Fig. 5 and 7 of Treat )[….], the second layer comprising: a second layer first surface (uppermost surface of layer 24 as shown in Fig. 5 of Treat and abutting the lower surface of layer 22) coupled to the first layer second surface (Fig. 5 of Treat), and a second layer second surface (lower most surface of layer 24 of Treat) having a second coefficient of friction less than the first coefficient of friction (Col. 3, line 65 – Col. 4, line 3 of Treat – “Lower layer 24 preferably is formed of suitable plastic material with little or no stretch, and with or without internal reinforcement, such as polyethylene for example, and thus forms a low friction or smooth, slippery bottom surface for sliding along the bed.).
Treat does not explicitly disclose the second layer configured to permit air therethrough.
In the same field of endeavor, patient movement device (title of Bromberger), Bromberger teaches the second layer configured to permit air therethrough (Page 5, lines 8-10 of Bromberger – “The loop of material 12 is made of a relatively low friction material, for example, a breathable nylon material, such that the first portion 18 easily slides over the second portion 20.”).
Accordingly, it would have been obvious to one of ordinary skill in the art before the date of invention to have combined Treat (directed to a patient transfer device) and Bromberger (directed to a patient transfer device with a low friction material formed with breathable material) and arrived at a patient transfer device with breathable material.
One of ordinary skill in the art would have been motivated to make such a combination because all of the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods (e.g. selecting a breathable low friction material) with a reasonable expectation of success and with no change in their respective functions and one of ordinary skill in the art would have recognized that the results of the combination were predictable (e.g. enabling more airflow, preventing moisture buildup, and decreasing the risk of bed sores).
Regarding Claim 38: Treat as modified makes obvious a system comprising: the sheet of claim 34, the sheet further comprising: a first edge (shown in annotated copy of Fig. 8 of Treat), and a second edge (shown in annotated copy of Fig. 8 of Treat) opposite the first edge (Fig. 8 of Treat); a first strip (reinforcing border tape 50 and attached handles 48 on the first edge as designated in the annotated copy of Fig. 8 of Treat) positioned along the first edge (Fig. 8 of Treat); and a second strip (reinforcing border tape 50 and attached handles 48 on the second edge as designated in the annotated copy of Fig. 8 of Treat) positioned along the second edge (Fig. 8 of Treat).
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Regarding Claim 39: Treat as modified makes obvious the system of claim 38, wherein: the first strip is coupled to the sheet to form a plurality of first handles (see Fig. 8 of Treat showing handles formed of 48 attached to 50 which is attached to the first edge of the sheets 42 and 44); and the second strip coupled to the sheet to form a plurality of second handles (see Fig. 8 of Treat showing handles formed of 48 attached to 50 which is attached to the second edge of the sheets 42 and 44).
Regarding Claim 40: Treat as modified makes obvious the system of claim 39, wherein: the first strip comprises: a plurality of first stitched portions coupling the first strip to the first edge (see Figs. 8 and 10 showing stitched portions coupling the handles and reinforcing tape to the first edge), and a plurality of first non-stitched portions (portion of the handle 48 which is not stitched – Fig. 8 of Treat), each of the first non-stitched portions defines each of the first handles (Fig. 8 of Treat); and the second strip comprises: a plurality of second stitched portions (see Figs. 8 and 10 showing stitched portions coupling the handles and reinforcing tape to the first edge) coupling the second strip to the second edge (Figs. 8 and 10 of Treat), and a plurality of second non-stitched portions (portion of the handle 48 which is not stitched – Fig. 8 of Treat), each of the second non-stitched portions defines each of the second handles (Figs. 8 and 10 of Treat).
Regarding Claim 42: Treat as modified makes obvious the sheet of claim 34, where the first layer and the second layer are coupled via stitching (via the reinforcing border tape 50 and stitching 52, 32 of Treat).
Regarding Claim 43: Treat as modified makes obvious the sheet of claim 34, wherein the first layer second surface faces the second layer first surface (Fig. 5 of Treat).
Claim 35-37 and 44-45 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Treat (US Patent No. 3,829,914) in view of Bromberger et al. (AU 2008243264 – hereinafter Bromberger) in further view of Berge (US PG Pub. No. 2005/0102750).
Regarding Claim 35: Treat as modified makes obvious the sheet of claim 34. However, neither Treat nor Bromberger make obvious the sheet of claim 34, wherein the first layer first surface comprises a coating having the first coefficient of friction.
However, in the same field of endeavor, transport devices (see the abstract of Berge), Berge teaches wherein the first layer first surface comprises a coating having the first coefficient of friction (outer panel 14 of Berge including a friction enhancing coating – paragraph [0028] of Berge).
Accordingly, it would have been obvious to one of ordinary skill in the art before the date of invention to have combined Treat (directed to a patient transfer sheet) and Bromberger (directed to a low friction material that is breathable) and (Berge directed to a transport mat with an outer layer having a surface formed with a coating) arrived at a patient transport device with a high friction outer layer formed of a coating. One of ordinary skill in the art would have been motivated to make such a combination because all of the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods (e.g. applying a coating to an outer surface for forming a textured surface for enhancing frictional engagement between the outer panel and patient) with a reasonable expectation of success and with no change in their respective functions and one of ordinary skill in the art would have recognized that the results of the combination were predictable (e.g. enhancing frictional engagement between the outer panel and patient helps avoid bunching).
Regarding Claim 36: Treat as modified does not make obvious the sheet of claim 35, wherein the coating is a spray coating (as discussed in paragraph [0028] of Berge).
Regarding Claim 37: Treat as modified makes obvious the sheet of claim 34. However, neither Treat nor Bromberger disclose or make obvious wherein the first layer first surface is treated with at least one of a hot melt adhesive or appropriate plastic.
However, in the same field of endeavor, transport devices (see the abstract of Berge), Berge teaches wherein the first layer first surface is treated with at least one of a hot melt adhesive or appropriate plastic (outer panel 14 of Berge including a friction enhancing coating including “The coating applied to the outer panel may be a sprayable synthetic elastomer such as 3M.RTM. Super 77.TM. Another example of a spray coating that can be applied is an aerosol spray sold as Plasti-Dip”– paragraph [0028] of Berge).
Accordingly, it would have been obvious to one of ordinary skill in the art before the date of invention to have combined Treat (directed to a patient transfer sheet) and Bromberger (directed to a patient transfer sheet with breathable low friction material) and (Berge directed to a transport mat with an outer layer having a surface formed with a plastic coating) arrived at a patient transport device with a high friction outer layer formed of a coating. One of ordinary skill in the art would have been motivated to make such a combination because all of the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods (e.g. applying a coating to an outer surface for forming a textured surface for enhancing frictional engagement between the outer panel and patient) with a reasonable expectation of success and with no change in their respective functions and one of ordinary skill in the art would have recognized that the results of the combination were predictable (e.g. enhancing frictional engagement between the outer panel and patient helps avoid bunching).
Regarding Claim 44: Treat as modified by Bromberger make obvious the sheet of claim 34, wherein: the first layer second surface (lowermost surface of layer 22 shown in Fig. 5 of Treat) has a third coefficient of friction (an inherent property of any surface) […]; and the second layer first surface [h]as a fourth coefficient of friction less than the first coefficient of friction (Col. 3, line 63-Col. 4 line 4 of Treat - “This layer 22 forms a friction-type top surface which is relatively rough, for frictionally supporting the body of the patient. Lower layer 24 preferably is formed of suitable plastic material with little or no stretch, and with or without internal reinforcement, such as polyethylene for example, and thus forms a low friction or smooth, slippery bottom surface for sliding along the bed.”).
Examiner’s Note: Treat teaches “a lower layer 24 preferably formed of a of suitable plastic material with little or no stretch, and with or without internal reinforcement, such as polyethylene for example, and thus forms a low friction or smooth, slippery bottom surface.” Treat does not explicitly disclose the frictional properties of each surface of the lower layer 24 but because the lower layer is described as being formed of a material which forms a lower slippery surface and because Treat teaches the need for a higher friction surface added to the upper surface of lower layer 24 to maintain the position of a patient on the sheet, the Examiner considers the upper and lower surfaces of the lower layer 24 to have the same frictional properties which is old and well known in the art.
Treat and Bromberger do not disclose or make obvious the third coefficient of friction being less than the first coefficient of friction.
However, in the same field of endeavor, transport devices (see the abstract of Berge), Berge teaches the third coefficient of friction being less than the first coefficient of friction (paragraph [0013] of Berge teaches forming both layers of Tyvek® and using coatings to increase or decrease the friction as desired). Forming the first and second layers of Treat of the same materials and then adding a coating to the upper surface as taught by Berge would result in the third coefficient of friction being less than the first coefficient of friction.
Accordingly, it would have been obvious to one of ordinary skill in the art before the date of invention to have combined Treat (directed to a patient transfer sheet) and Bromberger (directed to a low friction material that is breathable) and (Berge directed to a transport mat with an outer layer having a surface formed with a coating) arrived at a patient transport device with a high friction outer layer formed of a coating. One of ordinary skill in the art would have been motivated to make such a combination because all of the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods (e.g. forming the first and second layers of the same material with an exterior coating applied to the first layer first surface) with a reasonable expectation of success and with no change in their respective functions and one of ordinary skill in the art would have recognized that the results of the combination were predictable (e.g. enhancing frictional engagement between the outer panel and patient helps avoid bunching and streamlining manufacturing by requiring a single fabric).
Regarding Claim 45: Treat as modified by Bromberger and Berge make obvious the sheet of claim 44, [….]; and the fourth coefficient of friction is equal to the second coefficient of friction (Col. 3, line 63-Col. 4 line 4 of Treat - “This layer 22 forms a friction-type top surface which is relatively rough, for frictionally supporting the body of the patient. Lower layer 24 preferably is formed of suitable plastic material with little or no stretch, and with or without internal reinforcement, such as polyethylene for example, and thus forms a low friction or smooth, slippery bottom surface for sliding along the bed.”).
Examiner’s Note: Treat teaches “a lower layer 24 preferably formed of a of suitable plastic material with little or no stretch, and with or without internal reinforcement, such as polyethylene for example, and thus forms a low friction or smooth, slippery bottom surface.” Treat does not explicitly disclose the frictional properties of each surface of the lower layer 24 but because the lower layer is described as being formed of a material which forms a lower slippery surface and because Treat teaches the need for a higher friction surface added to the upper surface of lower layer 24 to maintain the position of a patient on the sheet, the Examiner considers the upper and lower surfaces of the lower layer 24 to have the same frictional properties which is old and well known in the art.
Berge further teaches the third coefficient of friction is equal to the second coefficient of friction (paragraph [0013] of Berge teaches forming both layers of Tyvek and using coatings to increase or decrease the friction as desired). Forming the first and second layers of Treat of the same materials and then adding a coating to the upper surface as taught by Berge would result in the second and third coefficients of friction being equal.
Accordingly, it would have been obvious to one of ordinary skill in the art before the date of invention to have combined Treat (directed to a patient transfer sheet) and Bromberger (directed to a low friction material that is breathable) and Berge (directed to a transport mat with an outer layer having a surface formed with a coating) arrived at a patient transport device with a high friction outer layer formed of a coating. One of ordinary skill in the art would have been motivated to make such a combination because all of the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods (e.g. forming the first and second layers of the same material with an exterior coating applied to the first layer first surface) with a reasonable expectation of success and with no change in their respective functions and one of ordinary skill in the art would have recognized that the results of the combination were predictable (e.g. enhancing frictional engagement between the outer panel and patient helps avoid bunching and streamlining manufacturing by requiring a single fabric).
Claim 41 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Treat (US Patent No. 3,829,914) in view of Bromberger et al. (AU 2008243264 – hereinafter Bromberger) in further view of Persson et al. (US Patent No. 6,658,676 – hereinafter Persson).
Regarding Claim 41: Treat as modified makes obvious the system of claim 38. However, neither Treat nor Bromberger disclose or make obvious further comprising: a plurality of first straps coupled to the first strip, each of the plurality of first straps configured to couple the sheet to a first side of a bed; and a plurality of second straps coupled to the second strip, each of the plurality of second straps configured to couple the sheet to a second side of the bed.
However, in the same field of endeavor, patient transfer devices (abstract of Persson), Persson teaches a plurality of first straps (first pair of straps 50, 52 of Persson) coupled to [a] first strip (Fig. 4 of Persson), each of the plurality of first straps configured to couple the sheet to a first side of a bed (shown in Fig. 4 of Persson); and a plurality of second straps (second pair of straps 50, 52 of Persson) coupled to the second strip (Fig. 4 of Persson), each of the plurality of second straps configured to couple the sheet to a second side of the bed (shown in Fig. 4 of Persson).
One having ordinary skill in the art before the date of invention would have found it obvious to combine Treat (directed to a patient transfer sheet) and Bromberger (directed to a patient transfer sheet with breathable low friction material) and Persson (directed to a patient support with accessory straps) with a reasonable expectation of success. One having ordinary skill in the art would have been motivated to make such a combination because “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.”
Claims 46, 48, 49, 52 and 53 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Treat (US Patent No. 3,829,914) in view of Berge (US PG Pub. No. 2005/0102750).
Regarding Claim 46: Treat discloses a sheet (elongated flexible sheet 20 of Treat – abstract) comprising: a first layer (upper layer 22 of Treat) comprising: a first layer first surface (uppermost surface of layer 22 shown in Fig. 5 of Treat) having a first coefficient of friction (Treat Col. 3, lines 60-65 - “upper layer 22 is formed of a fibrous material….This layer 22 forms a friction-type top surface which is relatively rough, for frictionally supporting the body of the patient”), and a first layer second surface (lowermost surface of layer 22 shown in Fig. 5 of Treat) opposite the first layer first surface (lower layer 24 – Fig. 5 and 7 of Treat), the first layer second surface having a second coefficient of friction (an inherent property of any surface) [….]; and a second layer (lower layer 24 – Fig. 5 and 7 of Treat ) comprising: a second layer first surface (uppermost surface of layer 24 as shown in Fig. 5 of Treat and abutting the lower surface of layer 22) coupled to the first layer second surface (Fig. 5 of Treat), and a second layer second surface (lower most surface of layer 24 of Treat) having a third coefficient of friction (an inherent property of any surface) less than the first coefficient of friction (Col. 3, line 63-Col. 4 line 4 of Treat - “This layer 22 forms a friction-type top surface which is relatively rough, for frictionally supporting the body of the patient. Lower layer 24 preferably is formed of suitable plastic material with little or no stretch, and with or without internal reinforcement, such as polyethylene for example, and thus forms a low friction or smooth, slippery bottom surface for sliding along the bed.”)
Examiner’s Note: Treat teaches “a lower layer 24 preferably formed of a of suitable plastic material with little or no stretch, and with or without internal reinforcement, such as polyethylene for example, and thus forms a low friction or smooth, slippery bottom surface.” Treat does not explicitly disclose the frictional properties of each surface of the lower layer 24 but because the lower layer is described as being formed of a material which forms a lower slippery surface and because Treat teaches the need for a higher friction surface added to the upper surface of lower layer 24 to maintain the position of a patient on the sheet, the Examiner considers the upper and lower surfaces of the lower layer 24 to have the same frictional properties which is old and well known in the art.
Treat does not explicitly disclose the second coefficient of friction being less than the first coefficient of friction.
However, in the same field of endeavor, transport devices (see the abstract of Berge), Berge teaches the second coefficient of friction being less than the first coefficient of friction (paragraph [0013] of Berge teaches forming both layers of Tyvek and using coatings to increase or decrease the friction as desired). Forming the first and second layers of Treat of the same materials and then adding a coating to the upper surface as taught by Berge would result in the second coefficient of friction being less than the first coefficient of friction.
Accordingly, it would have been obvious to one of ordinary skill in the art before the date of invention to have combined Treat (directed to a patient transfer sheet) and (Berge directed to a transport mat with an outer layer having a surface formed with a plastic coating) arrived at a patient transport device with a high friction outer layer formed of a coating. One of ordinary skill in the art would have been motivated to make such a combination because all of the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods (e.g. forming exterior surfaces of a device having different coefficients of friction by applying coatings to layers made of the same material) with a reasonable expectation of success and with no change in their respective functions and one of ordinary skill in the art would have recognized that the results of the combination were predictable (e.g. enhancing frictional engagement between the outer panel and patient helps avoid bunching).
Regarding Claim 48: Treat as modified by Berge make obvious the sheet of claim 46, wherein the second layer first surface has a fourth coefficient of friction less than the first coefficient of friction (see the modification of the invention of Treat in view of Berge above which teaches forming the upper and lower layers of Treat of the same material and coating the external top surface with a high friction coating to increase the first coefficient of friction – this modification results in a fourth coefficient of friction less than the first coefficient of friction).
Regarding Claim 49: Treat as modified by Berge make obvious the sheet of claim 48, wherein the fourth coefficient of friction is equal to at least one of the second coefficient of friction or the third coefficient of friction (see the modification of the invention of Treat in view of Berge above which teaches forming the upper and lower layers of Treat of the same material and coating the external top surface with a high friction coating to increase the first coefficient of friction – this modification results in the fourth coefficient of friction is equal to at least one of the second coefficient of friction or the third coefficient of friction).
Regarding Claim 52: Treat discloses the sheet of claim 50, wherein the first layer second surface has a fourth coefficient of friction (inherent property of surfaces) […].
Treat does not disclose wherein the fourth coefficient of friction is less than the first coefficient of friction.
However, in the same field of endeavor, transport devices (see the abstract of Berge), Berge teaches wherein the fourth coefficient of friction is less than the first coefficient of friction (paragraph [0013] of Berge teaches forming both layers of Tyvek and using coatings to increase or decrease the friction as desired). Forming the first and second layers of Treat of the same materials and then adding a coating to the upper surface as taught by Berge would result in the fourth coefficient of friction being less than the first coefficient of friction.
Accordingly, it would have been obvious to one of ordinary skill in the art before the date of invention to have combined Treat (directed to a patient transfer sheet) and (Berge directed to a transport mat with an outer layer having a surface formed with a plastic coating) arrived at a patient transport device with a high friction outer layer formed of a coating. One of ordinary skill in the art would have been motivated to make such a combination because all of the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods (e.g. forming exterior surfaces of a device having different coefficients of friction by applying coatings to layers made of the same material) with a reasonable expectation of success and with no change in their respective functions and one of ordinary skill in the art would have recognized that the results of the combination were predictable (e.g. enhancing frictional engagement between the outer panel and patient helps avoid bunching).
Regarding Claim 49: Treat as modified by Berge make obvious the sheet of claim 52, wherein the fourth coefficient of friction is equal to at least one of the second coefficient of friction or the third coefficient of friction (paragraph [0013] of Berge teaches forming both layers of Tyvek and using coatings to increase or decrease the friction as desired). Forming the first and second layers of Treat of the same materials and then adding a coating to the upper surface as taught by Berge would result in the fourth coefficient of friction being less than the first coefficient of friction.
Accordingly, it would have been obvious to one of ordinary skill in the art before the date of invention to have combined Treat (directed to a patient transfer sheet) and (Berge directed to a transport mat with an outer layer having a surface formed with a plastic coating) arrived at a patient transport device with a high friction outer layer formed of a coating. One of ordinary skill in the art would have been motivated to make such a combination because all of the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods (e.g. forming exterior surfaces of a device having different coefficients of friction by applying coatings to layers made of the same material) with a reasonable expectation of success and with no change in their respective functions and one of ordinary skill in the art would have recognized that the results of the combination were predictable (e.g. enhancing frictional engagement between the outer panel and patient helps avoid bunching and streamlining manufacturing by utilizing the same type of material for the first and second layers).
Claim 47 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Treat (US Patent No. 3,829,914) in view of Berge (US PG Pub. No. 2005/0102750) in further view of Bromberger et al. (AU 2008243264 – hereinafter Bromberger).
Regarding Claim 47: Treat as modified by Berge make obvious the sheet of claim 46. Treat and Berge do not disclose or make obvious wherein the second layer comprises breathable material configured to permit air therethrough.
In the same field of endeavor, patient movement device (title of Bromberger), Bromberger teaches the second layer configured to permit air therethrough (Page 5, lines 8-10 of Bromberger – “The loop of material 12 is made of a relatively low friction material, for example, a breathable nylon material, such that the first portion 18 easily slides over the second portion 20.”).
Accordingly, it would have been obvious to one of ordinary skill in the art before the date of invention have combined Treat (directed to a patient transfer device), Berge (patient transfer device with high and low friction layers formed with coatings) and Bromberger (directed to a patient transfer device with a low friction material formed with breathable material) and arrived at a patient transfer device with breathable material. One of ordinary skill in the art would have been motivated to make such a combination because all of the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods (e.g. selecting a breathable low friction material) with a reasonable expectation of success and with no change in their respective functions and one of ordinary skill in the art would have recognized that the results of the combination were predictable (e.g. enabling more airflow, preventing moisture buildup, and decreasing the risk of bed sores).
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 34-53 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-27 of U.S. Patent No. 8,984,681. US Patent No. 8,984,681 does not claim that the material is breathable. However, as presented in the claim rejections above, Bromberger makes obvious a low friction breathable material. One having ordinary skill in the art would find it obvious to utilize a breathable material for the second layer with a reasonable expectation of success and the results would have been predictable (e.g. enabling more airflow, preventing moisture buildup, and decreasing the risk of bed sores).
US Patent No. 8,984,681 does not claim that the second, third and fourth coefficients of friction are the same as claimed in claim 45. However, Berge makes obvious these teachings as presented above.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
US Patent No. 4,944,053 to Smith is cited for teaching a patient turning sheet.
US Patent No. 3,849,813 to Neilson is cited for teaching a patient sliding sheet.
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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