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) 1, 2, and 18-19 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Brykalski (US 2010/0011502).
Regarding Claim 1, Brykalski discloses a bed system (10’) comprising:
a mattress (60’);
a foundation (20’) having a first foundation side and a second foundation side, the foundation configured to support the mattress on the first foundation side, the foundation defining a foundation aperture (106’) extending between the first foundation side and the second foundation side (see Fig. 7B);
an attachment plate (38’) that is mounted at the first foundation side of the foundation and defines a plate opening that is aligned with the foundation aperture; and
a plenum (39’) having a first plenum end and an opposite second plenum end, the first plenum end configured to removably couple to the attachment plate at the first foundation side (see Fig. 14), and the second plenum end configured to couple to an air duct hose (54’) that is fluidly connected to the mattress.
Regarding Claim 2, Brykalski discloses wherein the air duct hose at least partially extends through the mattress (see Fig. 14) and has a first hose end being exposed outside the mattress and a second hose end opposite the first hose end, wherein the second hose end of the air duct hose is configured to fit over at least a portion of the plenum to retain the air duct hose to the plenum (see Fig. 14).
Regarding Claim 18, Brykalski discloses wherein the plenum defines an opening that is a same size as at least one of an opening of the air duct hose and the plate opening of the attachment plate (see Fig. 14).
Regarding Claim 19, Brykalski discloses an air distribution layer (70’), wherein an end of the air duct hose is fluidly connected to the distribution layer (see Fig. 14).
Claim Rejections - 35 USC § 102/103
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.
Claim(s) 3 is/are rejected under 35 U.S.C. 102(a)(1) as anticipated by Brykalski (US 2010/001502) or, in the alternative, under 35 U.S.C. 103 as obvious over Brykaski (US 2010/0011502) in view of Karschnik (US 2021/0204720)
Regarding Claim 3, Brykalski discloses ribs or bellows along inside of air hose 54’ (see Fig. 14), any one of which could be interpreted to be a center rib as required by the claim. In the event Applicant disagrees with this interpretation, Karschnik teaches a center rib (454) to provide structural support to the air duct hose (404) to maintain air flow through the air duct hose when pressure is applied to one or more components of the bed system (see para. [0236]. Brykalski and Karschnik are analogous art because they are from the same field of endeavor, i.e. ventilation systems. It would have been obvious to one having ordinary skill in the art at the time the invention was filed to modify the air duct hose of Brykalski with the centering rib of Karschnik. The motivation would have been to reinforce the air hose of Brykalski, while allowing flexibility of the air duct.
Claim Rejections - 35 USC § 103
Claim(s) 12-13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Brykalski (US 2010/0011502) in view of Nakajima(US 4,765,375).
Regarding Claim 12, Brykalski fails to disclose wherein the plenum includes first and second engagement tabs, and wherein the first and second engagement tabs are configured to snap fit into first and second apertures on opposing sides of a top surface of the attachment plate. Nakajima teaches wherein a plenum includes first and second engagement tabs (13), and wherein the first and second engagement tabs are configured to snap fit into first and second apertures (@8, see Figs. 1 and 3) on opposing sides of a top surface of an attachment plate (7b). Brykalski and Nakajima are analogous art because they are from the same field of endeavor, i.e. ventilation systems. It would have been obvious to one having ordinary skill in the art at the time the invention was filed to modify the plenum of Brykalski with the first and second engagement tabs of Nakajima. The motivation would have been to firmly secure the plenum to the attachment plate, thus preventing the plenum from becoming inadvertently disconnected from the attachment plate.
Regarding Claim 13, Nakajima further teaches wherein the first and second engagement tabs (13) include respective first and second flanges configured to engage with respective portions of the attachment plate adjacent the first and second apertures when the first and second engagement tabs are inserted and snapped into the first and second apertures (see Fig. 3).
Claim(s) 16-17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Brykalski (US 2010/0011502) in view of Official Notice
Regarding Claim 16, Brykalski fails to explicitly disclose wherein the air duct hose is made of a first material, and the plenum is made of a second material being less flexible than the first material. Brykalski desires in para. [0099] that the air duct hose to “comprise one or more bellows or other features to help accommodate movement (e.g., compression, expansion, rotation, etc.) while the bed 10A is in use. In addition, the inserts 54 can reduce the likelihood that air or other fluid being conveyed through the passageways 52 will be inadvertently directed to locations other that the intended target (e.g., pass through a space generally between the upper and lower portions 40, 20, leak into the core 60 or other portions or layers of the upper portion 40, etc.) or pick up undesirable odors (e.g., from the surrounding foam, latex and/or other materials of the core 60) or other substances with which the air or other fluid may otherwise come in contact.” Brykalski also desires that plenum 38 to prevent movement as stated in para. [0101] and [0123]. Examiner takes Official Notice that duct work made of two different materials, i.e. a duct made of silicone and a plenum made of plastic, is well known within the art. It would have been obvious to one having ordinary skill in the art at the time the invention was filed to modify system of Brykalski to have a silicone air duct hose that is less flexible than a plenum that is made of plastic. Since Brykalski already desires for a flexible duct hose and a plenum that prevents movement, modification of Brykalski with the aforementioned materials is within ordinary skill. It has been held to be within the general skill of a worker in the art to select known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12,520,951. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the patent require the same limitations as that of the instant application as well as requiring additional limitations. A species anticipates a genus.
Allowable Subject Matter
Claims 4-11, 14-15, 20 are objected to as being dependent upon a rejected base claim, but would be allowable if a proper Terminal Disclaimer (TD) is filed, and the claim is rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter: The prior art of record fails to disclose or suggest the subject matter required by Claims 4-6, 14, and 15. Brykalski discloses a general plenum 39’ and an air hose duct 54’. There is no disclosure of the specific fitting between these two structures and they might in fact be just a press-fit. Claims 4-6, 14, and 15 require specific attachment structures that are not present within the prior art of record. While Nakajima teaches engagement tabs, the specific structure required the claims is not disclosed or taught.
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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