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 .
Response to Arguments
A. No teaching or suggestion to combine
Applicant argues that the Office Action fails to establish how or why a PHOSITA would selectively pick and choose from the cited references, asserting that Karp’s magnetic coupling mechanism 124 is located on a front-side closure of the garment, whereas the claims require the first magnet on the back side, and that at most one skilled in the art would change the front locking zipper 90 of French to utilize magnets.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). The argument is therefore not persuasive because it mischaracterizes the rejection. The rejection does not propose bodily incorporating Karp’s front-closure structure into French, nor modifying French’s front zipper. The arrangement of the fasteners is disclosed by French. Karp is relied upon solely for its teaching that magnetic attachment mechanisms are art-recognized equivalents of hook and loop attachment mechanisms for releasably securing an infant garment listing “a hook and loop attachment mechanism, a push snap attachment, a magnetic attachment mechanism” as interchangeable coupling mechanisms. The examiner also notes that applicant’s own admission in [0003] of the specification that magnets are known, “convenient and faster way to secure clothes on infants” relative to other closure mechanisms.
Newly added functional limitation of claim 1
The limitation “when the infant is wearing the item of clothing and to retain the infant in a fixed position on the contact surface when the first and second magnets are engaged” does not distinguish over the combination. See rejection below.
Declaration of Dr. Gary Rogers under 37 C.F.R. 1.132
The Declaration has been fully considered but does not overcome the prima facie case of obviousness.
1. Opinions outside the declarant’s stated field of expertise, unsupported by factual evidence. The declarant states expertise in pediatric plastic surgery. The assertions in paragraphs 7-9 that hook and loop is “notorious” for wear, that “modern magnets (e.g., neodymium) lose less than 1% of their strength every decade,” that heavy duty hook and loop is “4-5 mm thick” pressed together while neodymium magnets can be “0.78 mm or less” are materials and fastener engineering assertions offered without any supporting citations, exhibits, or test data. Opinion testimony is entitled to weight only to the extent it is supported by facts of record; unsupported assertions, outstide the declarant’s stated field, are entitled to little weight. (MPEP 716.01 (c))
2. Opinion on the ultimate legal conclusion. The statements that the declarant “disagree[s] that substituting magnets for Velcro is a simple substitution” and “disagree[s] with this conclusion” of obviousness are opinions on the ultimate legal question. Such opinions are entitled to no weight. (MPEP 716.01(c)(III))
3. The coupling strength argument is not commensurate with the claims and attacks the operability of the applied art. The declarant asserts that securing an infant to a sleep surface “requires a much stronger coupling than coupling mechanisms for securing clothes together” and that “[n]ot all clothing fasteners would be appropriate.” However, claims 1 and 16 recite no magnetic strength, pull force, grade, or dimension of any magnet pair meeting the structural arrangement reads on the claims. Thus an argument premised on a strength requirement is not commensurate in scope with the claims. Further, French itself demonstrates that a garment-fastener-class releasable coupling (hook and loop) suffices in exactly the claimed arrangement to restrain an infant against a contact surface; selecting a magnet of suitable strength of the intended load is routine optimization within a PHOSITA. Lastly, the declarant’s statement that he does not believe “even the Velcro system” of the applied art “is likely to be adequate, safe, flexible, or as comfortable” amounts to an attack on the operability of the applied prior art, which is presumed operable for what it discloses; a declarant’s unsupported skepticism of the prior art’s teaching is not evidence of nonobviousness (MPEP 716.07)
4. Not commensurate in scope with the claims. The asserted advantages are largely untethered to independent Claims 1 and 16:
Point 6 (ability to link an electronic signal to magnet separation) i.e. no alarm or sensor is recited in claims 1 or 16
Point 7 (magnets insertable into pockets, removable/replaceable) not recited in claims 1 or 16
Point 9 (low profile; magnets can be buried in the mattress) no claim recites this feature.
For at least these reasons, the rejections of the claims are maintained.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 23 and 24 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Claims 23 and 24 recite that the magnets are configured to be “the only mechanism” retaining the infant in the fixed position and “the only mechanism” to prevent the infant from rolling over and lying on the infant’s front side. These are exclusive limitations that affirmatively exclude the presence of any other retaining or roll-presence of any other retaining or roll-prevention mechanism. The disclosure does not provide written description support for this exclusivity:
First, the specification nowhere describes the magnets as the “only,” “sole,” or “exclusive” mechanism performing either function, and nowhere describes the exclusion of all other retaining or roll-prevention mechanisms. The mere absence of a positive recitation of additional mechanisms is not a basis for an exclusive or negative limitation (MPEP 2173.05(i))
Second, the disclosure contemplates retention by mechanisms in addition to the magnetic attraction. In the embodiment in which the top surface of the magnet is recessed into the hollow cavity, the specification states that “movement of the infant can be restrained not only the attractive forces between the at least one magnet 4 and the at least one magnet 10 …. But also contact between the side surfaces of the magnets 4 and 10 and the interior surface of the hollow cavity 8, which will help restrict lateral movement of the infant and help disengagement between the magnets.” The disclosure thus describes a system in which mechanical interference between the magnet side surfaces and the cavity wall is a second mechanism restraining the infant, which is inconsistent with possession of an invention in which the magnetic engagement is the only such mechanism.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 1-2, 8-9, 16, 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent No. 7111344 issued to French in view of U.S. Patent No. 11490663 issued to Karp.
Regarding claim 1,
French discloses a … positioning apparatus for an item of clothing, the apparatus comprising: an item of clothing configured to be worn by an infant, (French: FIGS. 2A-2C (80) see also col. 4 lines 56-60 “Referring to FIGS. 2a c, three views of the sleep garment 80 of the present invention are shown: (a) front, closed; (b) back; and (c) front, open.”) the item of clothing having a front side (French: FIG. 2A) and a back side; (French: FIG. 2B) at least one first fastener secured to the item of clothing; (French: FIG. 2B (100) see col. 4 lines 61-63 “FIG. 2(b) shows the placement of hook and loop strips 100 on the back of the sleep garment 80.”) and at least one second fastener secured to a sleeping contact surface, (French: FIG. 1 (60) is on the crib sheet (10)) wherein the at least one first fastener is secured to the back side of the item of clothing, (French: FIG. 2B (100)) and wherein the at least one first fastener is configured to … engage the at least one second fastener when the infant is wearing the item of clothing and to retain the infant in a fixed position on the contact surface when the first and second fasteners are engaged. (French: col. 4 lines 65- col. 5 lines 1-4 and col. 5 lines 38-46 “The Velcro.TM. strips 100 may be placed in several different configurations, so long as the infant's back and the lower portion of the sleep garment 80 are secure. (15) Referring to FIGS. 1 and 2(b), in the preferred embodiment of the present invention, the Velcro.TM. strips 100 are placed on the sleep garment 80 in several vertical strips from the upper shoulders down to the lower leg area. There is also a horizontal strip of Velcro.TM. at the level of the infant's lower legs running almost the entire width of the back of the sleep garment 80. The connector 60 of the crib sheet 10 has three portions: a square of Velcro.TM. to secure the torso portion of the sleep garment 80, and two horizontal strips 70 to secure the lower body and leg portions of the sleep garment 80. The positioning of the connector 60 and the Velcro.TM. strips 100 are intended to achieve the following…” see also French claim 1 and col. 2 lines 14-17: engagement of the garment fasteners with the crib sheet connector prevents the infant from rolling over onto its stomach or moving about the crib i.e. retaining the infant while the garment is worn)
French does not appear to disclose at least one first magnet secured to the item of clothing; and at least one second magnet secured to a sleeping contact surface, wherein the at least one first magnet is secured to the back side of the item of clothing, and wherein the at least one first magnet is configured to magnetically engage the at least one second magnet.
However, Karp discloses the use of magnets as a known coupling mechanism along with other coupling mechanisms i.e. hook and loop etc. (Karp: col. 11 lines 10-16 “First coupling mechanism 124 may include but is not limited to any sealable and un-sealable mechanism, such as a zipper mechanism, a hook and loop attachment mechanism, a push snap attachment, a magnetic attachment mechanism, fasteners, clips, buttons, or any similar mechanism.”) The examiner further notes that in [0003] applicant admits that magnets are a known and “convenient and faster way to secure clothes on infants” relative to other closure mechanisms.
It would have been obvious for a PHOSTIA before the effective filing date of the claimed invention to substitute the hook and loop fasteners of French with magnets as taught by Karp since the substitution is one of known fastening elements for another known fastening element, both performing the same function of releasably securing an infant garment to a contact surface, and would yield the predictable result of releasably retaining the garment against the contact surface. One of ordinary skill in the art would have been motivated to make this combination in order to free up the infant’s arms to allow movement of the infant since the fastener is retained by magnetic attraction, and reduce noise from the fastener.
Regarding claim 2,
French in view of Karp discloses the apparatus of claim 1, wherein the at least one first magnet is configured to align with an infant’s spine. (French: French teaches that (100) are arranged “… in several vertical strips from the upper shoulders down to the lower leg area” (col. 5 lines 1-4), which align with an infant’s spine when the garment is worn. Substitution with magnets places the magnets in the same configuration.)
Regarding claim 8,
French in view of Karp discloses the apparatus of claim 1, wherein the at least one first magnet and the least one second magnet are linear magnetic strips. (French: French discloses the fasteners as linear vertical and horizontal strips (col. 5 lines 1-6 “several vertical strips” and “horizontal strip”.) substitution with magnets yields magnetic strips)
Regarding claim 9,
French in view of Karp discloses the apparatus of claim 2, wherein a top surface of the at least one second magnet is substantially planar with a top surface of the contact surface. (French: the connector (60) is disposed on the surface of crib sheet (10) see FIG. 1; col. 4, lines 18-22) such that its engagement face is substantially planar with the crib sheet surface. Substitution with magnets results in a magnet whose top surface is planar with the contact surface.)
Regarding claim 16,
French discloses a positioning apparatus comprising a garment configured to be worn by an infant, the garment having a front side and a back side (French: FIGS. 2A-2C (80) see also col. 4 lines 56-60 “Referring to FIGS. 2a c, three views of the sleep garment 80 of the present invention are shown: (a) front, closed; (b) back; and (c) front, open.”) and a surface that includes at least one first fastener secured to the item of clothing; (French: FIG. 2B (100) see col. 4 lines 61-63 “FIG. 2(b) shows the placement of hook and loop strips 100 on the back of the sleep garment 80.”) and a surface that includes at least one second fastener (French: FIG. 1 col. 4 lines 18-22), wherein when the infant is lying on its back on the surface, the at least one first fastener and the at least one second fastener are configured to be engaged to prevent the infant from rolling over and lying on the infant’s front side (claim 1 of French, see col. 2 lines 14-17)
French does not appear to disclose at least one first magnet secured to the item of clothing; and at least one second magnet secured to a sleeping contact surface, wherein the at least one first magnet is secured to the back side of the item of clothing, and wherein the at least one first magnet is configured to magnetically engage the at least one second magnet.
However, Karp discloses the use of magnets as a known coupling mechanism along with other coupling mechanisms i.e. hook and loop etc. (Karp: col. 11 lines 10-16 “First coupling mechanism 124 may include but is not limited to any sealable and un-sealable mechanism, such as a zipper mechanism, a hook and loop attachment mechanism, a push snap attachment, a magnetic attachment mechanism, fasteners, clips, buttons, or any similar mechanism.”) The examiner further notes that in [0003] applicant admits that magnets are a known and “convenient and faster way to secure clothes on infants” relative to other closure mechanisms.
It would have been obvious for a PHOSTIA before the effective filing date of the claimed invention to substitute the hook and loop fasteners of French with magnets as taught by Karp since the substitution is one of known fastening elements for another known fastening element, both performing the same function of releasably securing an infant garment to a contact surface, and would yield the predictable result of releasably retaining the garment against the contact surface. One of ordinary skill in the art would have been motivated to make this combination in order to free up the infant’s arms to allow movement of the infant since the fastener is retained by magnetic attraction, and reduce noise from the fastener.
Regarding claim 21,
French in view of Karp discloses the apparatus of claim 1, wherein the contact surface is part of a bedding or a sleep surface. (French: FIG. 1 (60) sits on the crib sheet (10) which is the bedding of a sleeping surface)
Regarding claim 22,
French in view of Karp discloses the apparatus of claim 16, wherein the surface is part of a bedding or a sleep surface. (French: FIG. 1 (60) sits on the crib sheet (10) which is the bedding of a sleeping surface)
Regarding claim 23,
French in view of Karp discloses the apparatus of claim 1, wherein the magnets are configured to be the only mechanism retaining the infant in the fixed position. (The examiner notes tin the combined system, the engaged first and second magnets are the sole mechanism retaining the infant in the fixed position on the contact surface, because no other element of the combined system performs that function)
Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent No. 7111344 issued to French in view of U.S. Patent No. 11490663 issued to Karp further in view of U.S. Publication No. 20150047105 issued to Fonzo.
Regarding claim 10,
French in view of Karp discloses the apparatus of claim 1.
French in view of Karp does not appear to disclose wherein the at least one first magnet is removably secured to the infant garment. (French: the hook and loop strips 100 are inherently removably engaged. Karp also discloses removable magnet attachment [0003])
However, Fonzo discloses wherein the at least one first magnet is removably secured to the infant garment. (Fonzo: [0013] “One of the principal and essential differences of the universal invisible Magnetic Removable Closure System is that the magnetic component is absolutely flexible, repeats naturally the curve even of light fabric. It is easy to insert and remove the magnetic component that makes the article of clothing, underclothing, leather goods, shoes, any accessories and any other field of application easily washable in the washer, dry-able in the dryer and can be ironed without being magnetically attached to the metal surface. “)
It would have been obvious for a PHOSTA before the effective filing date of the claimed invention to modify the magnet attachment of the French in view of Karp combination to be removably secured within a pocket on the garment as taught by Fonzo, in order to permit the garment to be laundered without damaging the magnet or the garment.
Claim(s) 3, 6-7 is/are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent No. 7111344 issued to French in view of U.S. Patent No. 11490663 issued to Karp further in view of U.S. Patent No. 5195197 issued to Guiterrez.
Regarding claim 3,
French in view of Karp discloses the apparatus of claim 1.
French in view of Karp does not appear to disclose wherein the contact surface includes a hollow cavity provided within a depth of the contact surface, and the at least one second magnet is at least partially positioned within the hollow cavity.
However, Gutierrez discloses wherein the contact surface includes a hollow cavity provided within a depth of the contact surface, and the at least one second magnet is at least partially positioned within the hollow cavity. (Guiterrez: FIG. 2 (20) i.e. equivalaent of the crib sheet of French or contact surface has a pocket (30) i.e. cavity housing at least one second magnet (40))
It would have been obvious for a PHOSTA before the effective filing date of the claimed invention to modify the contact surface of French in view of Karp such that the second magnet is postioned at least partially within a hollow cavity provided within the depth of the contact surface, as taught by Guiterrez since the combination uses a known technique (cavity-housing of a magnet within the depth of a sleeping-surface accessory) to improve a similar device i.e. French’s contact surface in the same way. One of ordinary skill in the art would have been motivated to make this modification so that the magnets “remain contained within the pockets 30 for substantial periods of time” and are “not uncomfortable to an individual lying atop” the surface (Guiterrez: col. 2 lines 65- col. 3 lines 1-5).
Regarding claim 6,
French in view of Karp in view of Guiterrez discloses the apparatus of claim 3, wherein the sleeping contact surface includes a first edge and a second edge, and the hollow cavity is centered between the first edge and the second edge. (French: the contact surface (10) includes a first and second edge in FIG. 1 and the hook and loop connector (60) which corresponds to the second magnet engagement element is “approximately centrally postioned on the crib sheet 10, at the center of the crossing point of the strips” col. 4 lines 18-22 so as to place “the infant’s back at the most secure postion” (col. 4 lines 21-22))
Regarding claim 7,
French in view of Karp in view of Guiterrez discloses the apparatus of claim 6, wherein the sleeping contact surface includes a third and fourth edge, and the hollow cavity is centered between the third and fourth edge. (French: the contact surface (10) rectangular in shape as shown in FIG. 1 includes first, second, third, and fourth edges, and the hook and loop connector (60) which corresponds to the second magnet engagement element is “approximately centrally postioned on the crib sheet 10, at the center of the crossing point of the strips” col. 4 lines 18-22 so as to place “the infant’s back at the most secure postion” (col. 4 lines 21-22))
Claim(s) 4 and 24 is/are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent No. 7111344 issued to French in view of U.S. Patent No. 11490663 issued to Karp further in view of U.S. Patent No. 5195197 issued to Guiterrez further in view of U.S. Publication No. 20090064390 issued to Beiring.
Regarding claim 4,
French in view of Karp in view of Guiterrez discloses the apparatus of claim 3, wherein an infant is free to move their arms and legs (French: col. 5 lines 17-20 “attach the lower portion of the sleep garment to the crib sheet in a manner that allows some movement of the infant's legs.”)
French in view of Karp in view of Guiterrez does not appear to disclose wherein an infant is free to move their arms … when the at least one first magnet is magnetically engaged with the at least one second magnet.
However, Beiring discloses wherein an infant is free to move their arms and legs when the at least one first magnet is magnetically engaged with the at least one second magnet. (Beiring: Abstract “A one piece sleep training garment used to progress an infant through three stages of swaddling positions. Stage one will swaddle both arms, stage two will only swaddle one arm and stage three will allow both arms to be free.” Substitution with magnets results in “the at least one first magnet is magnetically engaged with the at least one second magnet.”)
It would have been obvious for a PHOSTA before the effective filing date of the claimed invention to configure the magnetic infant positioning system of French in view of Karp in view of Gutierrez such that the infant’s arms are free to move while the magnets are engaged, as taught by Beiring’s stage three configuration since Beiring discloses arms-free is an established and recommended configuration for anti-SIDS infant sleep garments; (ii) the magnetic engagement of the modified French system independently provides the anti-roll function recited in claim 1 of French, eliminating any need for arm restraint as a redundant anti-roll measure.
Regarding claim 24,
French in view of Karp discloses the apparatus of claim 16.
French in view of Karp does not appear to disclose wherein the magnets are configured to be the only mechanism to prevent the infant from rolling over and lying on the infant’s front side, since French discloses an arm restraint mechanism.
However, Beiring discloses an infant sleep garment configuration in which the infant’s arms are unrestrained. (Beiring: Abstract “A one piece sleep training garment used to progress an infant through three stages of swaddling positions. Stage one will swaddle both arms, stage two will only swaddle one arm and stage three will allow both arms to be free.” Substitution with magnets results in “the at least one first magnet is magnetically engaged with the at least one second magnet.”)
It would have been obvious for a PHOSTA before the effective filing date of the claimed invention to configure the magnetic infant positioning system of French in view of Karp in view of Gutierrez such that the infant’s arms are free to move while the magnets are engaged, as taught by Beiring’s stage three configuration since Beiring discloses arms-free is an established and recommended configuration for anti-SIDS infant sleep garments; (ii) the magnetic engagement of the modified French system independently provides the anti-roll function recited in claim 1 of French, eliminating any need for arm restraint as a redundant anti-roll measure.
Claim(s) 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent No. 7111344 issued to French in view of U.S. Patent No. 11490663 issued to Karp further in view of U.S. Patent No. 5195197 issued to Guiterrez further in view of U.S. Publication No. 20090064390 issued to Beiring further in view of U.S. Publication No. 20090163778 issued to Sommerville.
Regarding claim 5,
French in view of Karp in view of Guiterrez in view of Beiring discloses the apparatus of claim 4.
French in view of Karp in view of Guiterrez in view of Beiring does not appear to disclose further comprising: an alarm to detect a disengagement between the at least one first magnet and the at least one second magnet.
However, in the same field of infant monitoring related to the same problem of magnet fasteners and infant monitoring, Sommerville discloses further comprising: an alarm to detect a disengagement between the at least one first magnet and the at least one second magnet. (Sommerville: [0080] “Referring to FIG. 2 the SIDS prevention and detection apparatus is generally depicted at 201 and is comprised of a sack 202 and an alarm 203. The sack 202 is connected to the alarm 203 via wiring 204. Further wiring (not shown) is encased in a removable conduit 205 which slots into a channel 206 in the sack 202. The sack 202 comprises a magnetic switch 207 that is associated with a magnet 208 which is attached to an infant 209 at rest in a cot 210.” And [0089] “The magnetic switch 207 is adjusted to a predetermined activation threshold such that if the infant 209 moves as part of the normal sleeping process the magnet 208 and magnetic switch 207 remain associated and the magnetic switch 207 is not triggered. However, should the sack 202 fail to constrain the infant 209 and allow the infant 209 to move into a "high risk" position (i.e. if the infant 209 slides inside the sack 202 or turns onto its front), the association between the magnet 208 and the magnetic switch 207 is broken, triggering the alarm 203.”)
It would have been obvious for a PHOSTA before the effective filing date of the claimed invention to incorporate, into the apparatus of French in view of Karp in view of Guiterez in view of Beiring an alarm configured to detect disengagement between the at least one first magnet and the at least one second magnet, as taught by Sommerville. One of ordinary skill in the art would have been motivated to add such an alarm to provide caregivers with immediate notification when the magnetic engagement is broken which in the combined system, signals that the infant has moved out of the desired supine position.
Claim(s) 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent No. 7111344 issued to French in view of U.S. Patent No. 11490663 issued to Karp further in view of U.S. Publication No. 20090163778 issued to Sommerville.
Regarding claim 17,
French in view of Karp discloses the apparatus of claim 16.
French in view of Karp does not appear to disclose further comprising: an alarm to detect a disengagement between the at least one first magnet and the at least one second magnet.
However, in the same field of infant monitoring related to the same problem of magnet fasteners and infant monitoring, Sommerville discloses further comprising: an alarm to detect a disengagement between the at least one first magnet and the at least one second magnet. (Sommerville: [0080] “Referring to FIG. 2 the SIDS prevention and detection apparatus is generally depicted at 201 and is comprised of a sack 202 and an alarm 203. The sack 202 is connected to the alarm 203 via wiring 204. Further wiring (not shown) is encased in a removable conduit 205 which slots into a channel 206 in the sack 202. The sack 202 comprises a magnetic switch 207 that is associated with a magnet 208 which is attached to an infant 209 at rest in a cot 210.” And [0089] “The magnetic switch 207 is adjusted to a predetermined activation threshold such that if the infant 209 moves as part of the normal sleeping process the magnet 208 and magnetic switch 207 remain associated and the magnetic switch 207 is not triggered. However, should the sack 202 fail to constrain the infant 209 and allow the infant 209 to move into a "high risk" position (i.e. if the infant 209 slides inside the sack 202 or turns onto its front), the association between the magnet 208 and the magnetic switch 207 is broken, triggering the alarm 203.”)
It would have been obvious for a PHOSTA before the effective filing date of the claimed invention to incorporate, into the apparatus of French in view of Karp an alarm configured to detect disengagement between the at least one first magnet and the at least one second magnet, as taught by Sommerville. One of ordinary skill in the art would have been motivated to add such an alarm to provide caregivers with immediate notification when the magnetic engagement is broken which in the combined system, signals that the infant has moved out of the desired supine position.
Claim(s) 25 is/are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent No. 7111344 issued to French in view of U.S. Patent No. 11490663 issued to Karp further in view of U.S. Publication No. 20130061436 issued to Peters.
Regarding claim 25,
French in view of Karp discloses the apparatus of claim 1.
French in view of Karp does not appear to disclose wherein the at least one first magnet and the at least one second magnet are neodymium magnets.
However, Peters discloses wherein the at least one first magnet and the at least one second magnet are neodymium magnets. (Peters: [0074] “The first magnet 127 and the second magnet 129 may be ferrite magnets, alnico magnets, rare earth magnets (Neodymium, Samarium-cobalt, for example), or the like.”)
It would have been obvious for a PHOSITA before the effective filing date of the claimed invention to select neodymium magnets for the first and second magnets of the French in view of Karp system, as taught by Peters, since Peters established that neodymium is one of a finite number of art-recognized, interchangeable permanent magnet materials suitable for magnetically engaging garment fastener pairs, and since it has been held that the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemicical Corp., 325 U.S. 327, 65 USPQ 297 (1945)
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ADAM C ORTIZ whose telephone number is (303)297-4378. The examiner can normally be reached Monday - Friday 7:30 am-3:30 pm.
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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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/ADAM C ORTIZ/Primary Examiner, Art Unit 3673
