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 .
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.
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Claims 1-10, 16 and 18-20 of the instant application are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 13, 22-24, 26-30, 33-35, and 37 of copending Application No. 18/867,566 (hereinafter the reference application).
Although the claims at issue are not identical, they are not patentably distinct from each other because claims 13 and 26 of the reference application completely disclose, and therefore anticipate, all that is claimed in claim 1 of the instant application. Additionally, dependent claims 2-9 of the instant application are anticipated by claims 27-30 and 33-35, sequentially, of the reference application. Furthermore, claim 10 of the instant application is anticipated by claim 37 of the reference application, claims 16 and 18 of the instant application is anticipated by claim 20 of the reference application, and claims 19-20 of the instant application are anticipated by claims 23-24 of the reference application, respectively. This is a provisional nonstatutory double patenting rejection as application 18/867,566 has yet to issue.
Additionally, claims 11-15 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 26 and 37 of copending Application No. 18/867,566 (hereinafter the reference application) in view of DeMoss (U.S. Publication No. 2013/0192003). As discussed above claim 37 (which depends from claim 26) of the reference application fully discloses and therefore anticipates claim 10 of the instant application. The reference application does not anticipate the subject matter of claims 11-14 of the instant application.
Regarding claim 11, DeMoss teaches wherein the coil spring 10 in the first orientation and the adjacent coil spring 10 in the second orientation are located in the same strand R1 of pocketed coil springs 10 (see DeMoss, Figures 5-6, where either of the rows R1-5 or columns C1-5 may be considered a strand). Regarding claim 12, DeMoss teaches wherein the coil spring 10 in the first orientation and the adjacent coil spring in the second orientation are located in adjacent strands C1 and C2 of pocketed coil springs 10 (see DeMoss, Figure 5-6, where either of the rows R1-5 or columns C1-5 may be considered a strand). Regarding claim 13, DeMoss teaches wherein each of the plurality of coil springs 10 in the strand C1 of pocketed coil springs including the coil spring 10 in the first orientation are also in the first orientation (see DeMoss, Figures 5-6). Regarding claim 14, DeMoss teaches wherein each of the plurality of coil springs 10 in the strand C2 of pocketed coil springs 10 including the coil spring 10 in the second orientation are also in the second orientation (see DeMoss, Figures 5-6). Finally, regarding claim 15, DeMoss teaches wherein another adjacent coil spring 10 located in an adjacent strand R2 of pocketed coil springs 10 is in the second orientation (see DeMoss, Figures 5-6).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified the reference application with DeMoss such that for each of the plurality of coil springs, the coil spring is in a first orientation and an adjacent coil spring is in a second orientation rotated 180 degrees about a longitudinal axis of the coil springs relative to the first orientation. One of ordinary skill in the art would have been motivated to do so because the alternating orientations of the coil springs helps to prevent lateral leaning and off-axis compression of the coil springs (paragraph 0024).
This is a provisional nonstatutory double patenting rejection.
Claim Rejections - 35 USC § 103
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.
Claims 16-17 are rejected under 35 U.S.C. 103 as being unpatentable over DeFranks (U.S. Publication No. 2012/0112396) in view of DeMoss (U.S. Publication No. 2013/0192003).
Regarding claim 16, DeFranks teaches a method of manufacturing a mattress assembly(paragraph 0033), comprising: providing a plurality of coil springs 10 (Figure 1 and paragraph 0033), each coil spring 10 including a continuous wire forming a lowermost convolution, an uppermost convolution opposite the lowermost convolution, and a plurality of helical intermediate convolutions between the lowermost convolution and the uppermost convolution (Figure 1), the continuous wire defining a pitch between the lowermost convolution and the helical convolution adjacent to the lowermost convolution, a pitch between each one of the plurality of intermediate convolutions, and a pitch between the uppermost convolution and the intermediate convolution adjacent to the uppermost convolution (Figure 1, where each convolution is spaced from an adjacent convolution, thereby defining the pitches), and the continuous wire divided into a lower portion 14 and 16 including the lowermost convolution and one or more of the intermediate convolutions, each of the one or more intermediate convolutions of the lower portion having a diameter greater than or equal to a lower minimum diameter (Figure 1), the pitch between each of the convolutions of the lower portion greater than or equal to a lower minimum pitch (Figure 1), and an upper portion 12 including the uppermost convolution and one or more of the intermediate convolutions, each of the one or more intermediate convolutions of the upper portion 12 having a diameter greater than or equal to an upper minimum diameter (Figure 1), the pitch between each of the convolutions of the upper portion less than or equal to an upper maximum pitch (Figure 1); forming a pocket around each coil spring with a flexible enclosure such that each pocketed coil spring is in a strand of pocketed coil springs (paragraphs 0033-0034); and positioning a plurality of the strands of pocketed coil springs in parallel (paragraphs 0033-0034, where the springs may be arranged in columns and rows); wherein the upper maximum pitch (of upper portion 12) is less than the lower minimum pitch (of lower portion 14 and 16, see Figure 1 and paragraph 0022), wherein, prior to forming the pocket around each coil spring,
DeFranks does not disclose the coil spring is positioned in either a first orientation or a second orientation rotated 180° about a longitudinal axis of the coil spring relative to the first orientation.
DeMoss teaches the coil spring 10 is in either a first orientation and or a second orientation rotated 180 degrees about a longitudinal axis of the coil springs 10 relative to the first orientation (Figure 5 and paragraph 0022).
It would have been obvious to one of ordinary skill in the art before the effective filing date to have modified DeFranks (directed to a spring mattress assembly) with DeFranks (also directed to a spring mattress assembly) such that the coil spring is positioned in a first orientation or a second orientation rotated 180 degrees about a longitudinal axis of the coil springs relative to the first orientation. One of ordinary skill in the art would have been motivated to do so because the alternating orientations of the coil springs helps to prevent lateral leaning and off-axis compression of the coil springs (paragraph 0024).
Regarding claim 17, DeFranks, as modified, discloses the subject matter as discussed above with regard to claim 20. DeFranks, as modified, further discloses wherein the upper minimum diameter is greater than or equal to the lower minimum diameter (see DeFranks, Figure 1 and paragraph 0032).
Allowable Subject Matter
Claims 1-15 would be allowable if rewritten or amended to overcome the nonstatutory double patenting rejections, set forth in this Office action, or upon the timely filing of a terminal disclaimer.
Regarding claims 1 and 10, Cavallo (U.S. Publication No. D1,064,696) discloses a coil spring, comprising: a continuous wire forming a lowermost convolution, an uppermost convolution opposite the lowermost convolution, and a plurality of helical intermediate convolutions between the lowermost convolution and the uppermost convolution (see annotated Figure 2, below) , the continuous wire defining a pitch between the lowermost convolution and the helical convolution adjacent to the lowermost convolution, a pitch between each one of the plurality of intermediate convolution, and a pitch between the uppermost convolution and the intermediate convolution adjacent to the uppermost convolution (Figure 2, where each convolution is spaced from an adjacent convolution, thereby defining the pitches), and the continuous wire divided into a lower portion including the lowermost convolution and one or more of the intermediate convolutions (see annotated Figure 2, below), each of the one or more intermediate convolutions of the lower portion having a diameter greater than or equal to a lower minimum diameter (see annotated Figure 2, below), and the pitch between each of the convolutions of the lower portion greater than or equal to a lower minimum pitch, the diameter of a central convolution of the one or more intermediate convolutions of the lower portion equal to the lower minimum diameter (see annotated Figure 2, below, and see annotated Figure 1, below), and the diameter of each of the other convolutions of the one or more intermediate convolutions of the lower portion being greater than the lower minimum diameter such that the lower portion has an hourglass shape (see annotated Figure 2, below, and see annotated Figure 1, below); and an upper portion including the uppermost convolution and one or more of the intermediate convolutions, each of the one or more intermediate convolutions of the upper portion having a diameter greater than or equal to an upper minimum diameter (see annotated Figure 2, below), the pitch between each of the convolutions of the upper portion less than or equal to an upper maximum pitch (see annotated Figure 2, below), wherein the upper minimum diameter is greater than or equal to the lower minimum diameter (see annotated Figure 2, below).
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DeFranks (U.S. Publication No. 2012/0112396) is additionally cited as being of interest for teaching a mattress assembly, comprising: a plurality of parallel strands of pocketed coil springs (paragraphs 0033-0034), each strand including: a plurality of coil springs aligned along a length of the strand wherein the upper maximum pitch (of upper portion 14) is less than the lower minimum pitch (of lower portion 14 and 16, Figure 1 and paragraphs 0022-0023).
Neither of the prior art cited above, either alone or in combination, disclose, teach, or suggest wherein the upper minimum diameter is greater than or equal to the lower minimum diameter. Thomas (U.S. Publication No. 2017/0335914) is cited as being of interest for discloses the upper minimum diameter (of 27) is less than or equal to the lower minimum diameter (of any of convolutions 21-24), and wherein the upper maximum pitch (of upper portion 16) is less than the lower minimum pitch (of lower portion 21, Figure 1). DeFranks additionally discloses the lower portion 14 and 16 having an hourglass shape (Figure 1), and the upper portion 12 having an upper convolution that is the same as the upper minimum diameter (Figure 1). However, DeFranks teaches that the diameter of the hourglass portion 14 is less than the diameter of the top convolution 102 (paragraph 0032 and Figure 1). However, Thomas does not disclose the hourglass shape of the lower portion, as required by the claim, which is the reason why the upper portion has a diameter smaller than the lower portion. As such, there is no disclosure, teaching, or suggestion in the prior art of record such that a rejection of claims 1 or 10 may be reasonably maintained. Claims 2-9 and 11-14 would additionally be allowable by virtue of their dependence from claims 1 and 10, respectively.
Claims 18-20 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims and if rewritten or amended to overcome the nonstatutory double patenting rejections, set forth in this Office action, or upon the timely filing of a terminal disclaimer.
Regarding claim 18, DeMoss, as modified, discloses the subject matter discussed above with regard to claim 16. DeMoss as modified, does not disclose the upper minimum diameter is less than or equal to the lower minimum diameter. Thomas is cited as being of interest for discloses the upper minimum diameter (of 27) is less than or equal to the lower minimum diameter (of any of convolutions 21-24), and wherein the upper maximum pitch (of upper portion 16) is less than the lower minimum pitch (of lower portion 21, Figure 1). DeFranks additionally discloses the lower portion 14 and 16 having an hourglass shape (Figure 1), and the upper portion 12 having an upper convolution that is the same as the upper minimum diameter (Figure 1). However, DeFranks teaches that the diameter of the hourglass portion 14 is less than the diameter of the top convolution 102 (paragraph 0032 and Figure 1). However, Thomas does not disclose the hourglass shape of the lower portion, as required by the claim, which is the reason why the upper portion has a diameter smaller than the lower portion. As such, there is no disclosure, teaching, or suggestion in the prior art of record such that a rejection of claim 9 may be reasonably maintained.
Regarding claims 19-20, DeFranks, as modified, discloses the subject matter discussed above with regard to claim 20. DeFranks as modified, does not disclose wherein the plurality of coil springs are provided from a coiler and the orientation of the spring is determined by an amount of wire included in the lowermost convolution of the coil spring, as required by claim 23, or, more specifically, that the coil springs that are in the second orientation are provided with an additional half turn of wire in the lowermost convolution of the coil spring such that a terminal end of the coil springs in the first orientation and a terminal end of the coil springs in the second orientation are in substantially the same place relative to the pocket around each coil spring, as required by claim 24. McCraw (U.S. Patent No. 6,375,169) is cited as being of interest for disclosing a spring mattress 12 comprising springs 14 which alternate between a first and second orientation (Figure 7 and Col. 4, line 67-Col. 3, line 11). McCraw additionally teaches that the types of the springs used in the mattresses may differ according to various properties including differences between the configuration of the top or bottom convolution and in the number of turns in each spring (including half-turns, see Col. 1, lines 28-41). However, none of McCraw or any of the prior art cited above, either alone or in combination, disclose, teach or suggest, that the orientation of the springs is determined by the amount of wire included in the lowermost convolution. As such, there is no disclosure, teaching, or suggestion in the prior art of record such that rejection of either of claims 19 or 20 may be reasonably maintained.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Powers (U.S. Patent No. 1,963,053) which discloses a spring comprising various diameters and pitches throughout the upper and lower portions of the spring.
Janapol (U.S. Patent No. 3,430,275) which discloses a spring comprising an hourglass shape.
Grothaus (U.S. Publication No. 2007/0101507) which discloses an hourglass-shaped spring.
Ahn (U.S. Publication No. 2015/0084251) which discloses a spring comprising an upper portion and a lower portion with different diameters and pitches.
Yang (U.S. Publication No. 2021/0059424) which discloses an hourglass-shaped spring.
Clayton (U.S. Patent No. 6,339,857) which discloses a spring mattresses where adjacent springs are oriented in different directions.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALISON N LABARGE whose telephone number is (571)272-6098. The examiner can normally be reached M-F 8-4:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Matthew Troutman can be reached at (571) 270-3654. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ALISON N LABARGE/Examiner, Art Unit 3679
/Matthew Troutman/Supervisory Patent Examiner, Art Unit 3679
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