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 .
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 70-72 and 74-76 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Grabinger (US 2021/0204719).
Regarding Claim 70, Grabinger discloses a method for controlling a microclimate of a mattress (1604), the method comprising:
receiving a temperature setting (via temperature sensors 1630) ;
activating a fan (1610) to cause air to move through a top layer of the mattress based on the temperature setting (see para. [0432]);
detecting humidity of air (via sensor 1632) that flows from the top layer of the mattress (see para. [0433]);
determining whether the humidity of air is greater than a first threshold value during a first state of sleep (see Fig. 47);
based on determining that the humidity of air exceeds the first threshold value during the first state of sleep, adjusting operation of the fan to lower the humidity of air below the first threshold value (see Fig. 47); and
adjusting operation of the fan to lower the humidity of air below a second threshold value prior to a second state of sleep (see para. [0496]).
Regarding Claim 71, Grabinger discloses wherein activating the fan comprises :controlling a speed of the fan based on the temperature setting (see para. [0492-0496] and Fig. 47).
Regarding Claim 72, Grabinger discloses wherein activating the fan comprises:
operating the fan to draw air from the top layer of the mattress based on the temperature setting; or
operating the fan to blow air toward the top layer of the mattress based on the temperature setting (see para. [0063]).
Regarding Claim 74, Grabinger discloses wherein detecting the humidity of air comprises:
operating the fan to draw air for a predetermined period of time; and
detecting humidity of the air that is drawn for the predetermined period of time (see para. [0377] and [0437]).
Regarding Claim 75, Grabinger discloses wherein adjusting operation of the fan comprises:
decreasing the temperature setting based on the detected humidity of air being greater than the first threshold value (see para. [0274] and [0429])
Regarding Claim 76, Grabinger discloses determining whether the detected humidity of air is smaller than the second threshold value;
wherein adjusting operation of the fan comprises:
increasing the temperature setting based on the detected humidity of air being smaller than the second threshold value (see para. [0274]; relative humidity decreases as temperature increases, i.e. air is heated).
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 36, 38-49, and 89 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12,433,421. Although the claims at issue are not identical, they are not patentably distinct from each other because it would have been obvious at the time of invention to use the device in patent as in the instant claims as the functional language used to describe the structure in the ‘421 patent is now currently recited as method steps. Further it would not be possible to use the steps claimed without infringing the structure of the ’421 device. It also would not be possible to use the ‘421 device without infringing the instant claims. A comparison of Claim 36 of the instant application to Claim 20 of the processor in the ’421 patent as an example is below:
Claim 36 of instant application
Claim 20 of ‘421 patent
A method for controlling a microclimate of a mattress, the method comprising:
a processor configured to:
receiving a temperature setting;
receive a temperature setting,
activating, based on the temperature setting, an air controller to cause air to move through an air distribution layer of the mattress at a first airflow rate,
activate the fan assembly based on the temperature setting to thereby move air through the air distribution layer at a first airflow rate,
receiving a temperature signal from a temperature sensor, the temperature signal being representative of a temperature of air that flows through the air controller,
receive a temperature signal from the temperature sensor, the temperature signal being representative of a temperature of air that flows through the air controller,
receiving a humidity signal from a humidity sensor, the humidity signal being representative of a humidity of air that flows through the air controller,
receive a humidity signal from the humidity sensor, the humidity signal being representative of a humidity of air that flows through the air controller,
based on the humidity signal, determining an estimated humidity at a top of the mattress;
based on the humidity signal that is representative of the humidity of air that flows through the air controller, determine an estimated humidity at a top of the mattress system;
adjusting the temperature setting based on the temperature signal and the estimated humidity at the top of the mattress; and
adjust the temperature setting based on the temperature signal and the estimated humidity at the top of the mattress system, and
activating, based on the adjusted temperature setting, the air controller to move air through the air distribution layer at a second airflow rate.
activate the fan assembly based on the adjusted temperature setting to thereby move air through the air distribution layer at a second airflow rate.
Allowable Subject Matter
Claims 36, 38-49, and 89 are allowed pending the filing of a proper Terminal Disclaimer (TD).
The following is an examiner’s statement of reasons for allowance: Claims 36 and 89 generally reflect the allowed apparatus claims in parent application 17/964,150, now U.S. Patent No. 12,433,421. Claim 36 contains the similar allowable subject matter to that of Claim 20 of the patent, and Claim 89 contains similar allowable subject matter to that of Claim 1 of the patent.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See attached PTO-892.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERIC J KURILLA whose telephone number is (571)270-7294. The examiner can normally be reached Monday-Thursday 7AM-6PM.
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/ERIC J KURILLA/Primary Examiner, Art Unit 3619
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