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 Objections
Claim 5 is objected to because of the following informalities: Please delete the extra instance of “at least” in “includes at least in the at least” (emphasis added). Appropriate correction is required.
Claim 21 is objected to because of the following informalities: Please insert —of— between “plurality” and “recesses” in line 2 of the claim.
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.
Claims 1-12 and 14-21 are 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.
Claim 1 recites the limitations "recesses", “a plurality of recesses”, and “the plurality of recesses” in the last four lines of the claim. There is insufficient antecedent basis for these limitations in the claim. It is unclear if all of these limitations refer to same structure or if “recesses” is different than “the plurality of recesses”.
Claim 17 recites the limitations "a plurality of recesses" and “the recesses”. There is insufficient antecedent basis for these limitations in the claim. It is unclear whether “a plurality of recesses” and/or “the recesses” refers to the recesses stated in Claim 1, or if these are different “plurality of recesses” and/or “recesses”
Claim 21 recites the limitation "a plurality [of] recesses". There is insufficient antecedent basis for this limitation in the claim. It is unclear whether “a plurality [of] recesses” refers to the plurality of recesses stated in Claim 1, or if these are different “plurality of recesses”.
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.
Claim(s) 1-12 and 14-21 is/are rejected under 35 U.S.C. 103 as being unpatentable over BODYGUARD® Anti-Kartell-Matratze – Produktfilm, hereinafter referred to as “Bodyguard”. Examiner has annotated a screenshot of Bodyguard with an overlay of Applicant’s Fig. 2 denoting reference numerals. Please reference this annotation and the video when analyzing the rejection(s) below.
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Regarding Claim 1, Bodyguard discloses A mattress, Mattress (10) comprising:
at least one first mattress element (30) with a first contact surface (34) and an
oppositely arranged first outer surface (32), which is formed as a first lying surface for a
user; and
at least one second mattress element (40) with a second contact surface (44)
and an oppositely arranged second outer surface (42), which is formed as a second lying
surface for a user,
wherein the first mattress element (30) and the second mattress element (40)
are stacked on top of each other in such a way that the first contact surface (34) of the first
mattress element (30) and the second contact surface (44) of the second mattress element (40) are at least partially in contact with each other,
wherein the mattress has at least one head support area for supporting a head, at least
one neck support area for supporting a neck, at least one shoulder support area for supporting shoulders, at least one lordosis support area for supporting at least part of a spine, and at least one pelvis support area for supporting a user's pelvis (see 0:39 timestamp),
wherein the first mattress element (30) has a profile on the first outer surface (32) and the second mattress element (40) has a profile on the second outer surface, so that the first mattress element (30) and the second mattress element (40) have different compression hardnesses and/or differ in their degree of hardness (see 0:21 timestamp),
wherein the profile (50) arranged on the second outer surface (42) of the
second mattress element (40) includes several recesses (52a) in the at least one pelvis support area,
wherein a plurality of recesses (52a) have a triangular cross-section (see 0:18 timestamp). Bodyguard fails to disclose wherein a thickness (D) of the mattress (10) is at least 24 cm. Bodyguard is silent to the exact thickness, however, Examiner takes Official Notice that a mattress with a thickness of at least 24 cm is well-known within the art (see e.g., Table II in para. [0119] of Mason US 2019/0038040). It would have been obvious matter of design choice at the time the invention was filed to make the thickness (D) of the mattress at least 24 cm, since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237, (CCPA 1955). As best understood, Bodyguard further fails to disclose wherein the plurality of recesses differ at least partially in their cross-sectional area. Bodyguard generally shows three triangular-shaped recesses (52a) that are similar in their cross-sectional area. Applicant’s disclosure states that “the recesses 52a, which are furthest apart from each other, have a depth of 30 mm, or extend 30 mm into the interior volume of the second mattress element 40. The recess 52a, which is located between the recesses that are furthest apart, comprises a depth of 25 mm, or extends 25 mm into the interior volume of the second mattress element 40. The three recesses 52a are open in the direction of or towards the second outer surface 42 and form openings of 30 mm there. Alternatively, the recesses 52a with a triangular cross-sectional area may also extend into the second mattress element 40 with an area of 10 mm to 60 mm. Furthermore, the cross-section of the recesses 52a may increase or decrease gradually or continuously.” See pg. 26, Lines 24-35 of Applicant’s specification. No criticality is stated for the 5 mm depth difference between the recesses 52a or a change in cross-section between the recesses. As such, it would have been obvious matter of design choice at the time the invention was filed to make the plurality of recesses differ at least partially in their cross-sectional area, since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237, (CCPA 1955).
Regarding Claim 2, Bodyguard discloses wherein the first mattress element (30) on the first outer surface (32) and the second mattress element (40) on the second outer surface (42) include profiles (50, 46) that differ at least partially from each other.
Regarding Claim 3, Bodyguard discloses wherein the thickness of the mattress
is determined solely by the thickness of the first mattress element and the second mattress element, and/or
wherein the thickness of the mattress is determined by the sum of the thicknesses of the first mattress element and the second mattress element and/or
wherein the thickness is measured transversely to a longitudinal axis
of the mattress, transversely to a transverse axis of the mattress and/or parallel to a height axis of the mattress (see annotated Fig. above).
Regarding Claim 4, Bodyguard teaches wherein the thickness of the mattress is between 24 cm and 30 cm (see Claim 1 rejection)
Regarding Claim 5, Bodyguard discloses wherein the second contact surface (44) of
the second mattress element (40) comprises includes at least in the at least one head support area the at least one neck support area, the at least one shoulder support area and/or the at least one lordosis support area a jagged and/or tooth-shaped profile (36).
Regarding Claim 6, Bodyguard discloses wherein the jagged and/or tooth-shaped profile
comprises includes at least one recess (38) with a rectangular cross-section.
Regarding Claim 7, Bodyguard discloses wherein the recesses of the jagged
and/or tooth-shaped profile each extend over an entire width of the mattress substantially parallel to a transverse axis of the mattress (see 0:14 timestamp).
Regarding Claim 8, Bodyguard discloses wherein the jagged and/or tooth-shaped profile
is formed exclusively on the second contact surface of the second mattress element, and/or wherein the first contact surface of the first mattress element is unprofiled, smooth, and/or flat (see annotated Fig. above).
Regarding Claim 9, Bodyguard discloses wherein the recesses of the jagged
and/or tooth-shaped profile are spaced equidistantly in a longitudinal direction of the mattress, and/or wherein directly adjacent recesses (38) of the jagged and/or tooth-shaped profile are spaced apart from each other at an identical distance (see annotated Fig above).
Regarding Claim 10, Bodyguard discloses wherein the distance between the recesses
of the jagged and/or tooth-shaped profile is equal to the length of the recesses in a longitudinal direction of the mattress (see 0:21 timestamp).
Regarding Claim 11, Bodyguard discloses wherein the recesses of the jagged
and/or tooth-shaped profile have identical depths, and/or
wherein the recesses of the jagged and/or tooth-shaped profile extend to the same
depth into the second contact surface of the second mattress element (see 0:21 timestamp).
Regarding Claim 12, Bodyguard discloses wherein the jagged and/or tooth-shaped
profile is symmetrical formed relative to a central transverse axis of the mattress (see 0:25 timestamp).
Regarding Claim 14, Bodyguard discloses wherein the profile formed on the first
outer surface of the first mattress element and/or the profile formed on the second outer surface of the second mattress element includes at least one recess (52,48a, 48b) with a round, rounded, triangular, rounded, circular, elliptical, oval, T-shaped, and/or teardrop-shaped cross-section (see annotated Fig. above).
Regarding Claim 15, Bodyguard discloses wherein the at least one recess of the
profile formed on the first outer surface of the first mattress element extends across an entire width of the mattress and is spaced apart from the first outer surface of the first mattress element in a vertical direction of the mattress, so that the at least one recess is formed in an internal volume of the first mattress element, and wherein the at least one recess is opened toward the first outer surface via an incision (54) extending parallel to the at least one recess (see annotated Fig. above).
Regarding Claim 16, Bodyguard discloses wherein at least one recess (48, 52) of the
profile formed on the second outer surface of the second mattress element extends across an entire width of the mattress and is spaced apart from the second outer surface of the second mattress element in a vertical direction of the mattress, so that the at least one recess (48, 52) is formed in an internal volume of the second mattress element (see 0:14 timestamp), and
wherein the at least one recess is opened toward the second outer surface via an incision (47) extending parallel to the at least one recess (see annotated Fig. above).
Regarding Claim 17, Bodyguard discloses wherein the profile formed on the first
outer surface of the first mattress element and the profile formed on the second outer surface of the second mattress element comprise a plurality of recesses (48, 52), and wherein a diameter and/or cross-sectional area of at least some of the recesses (48, 52) differ from one another (see annotated Fig. above).
Regarding Claim 18, Bodyguard discloses wherein a depth and/or cross-sectional area
of at least a portion of the recesses (48) of the profile formed on the first outer surface of the first mattress element differs from a depth and/or cross-sectional area of at least a portion of the recesses of the profile formed on the second outer surface of the second mattress element (see annotated Fig. above and 0:14 timestamp).
Regarding Claim 19, Bodyguard discloses wherein recesses (48, 52) of the profile
formed on the first outer surface of the first mattress element and of the profile formed on the second outer surface of the second mattress element with an identical cross-sectional area have an identical depth (see annotated Fig. above and 0:14 timestamp).
Regarding Claim 20, Bodyguard discloses wherein a single recess (48, 52) of the profile
formed on the first outer surface of the first mattress element and the profile formed on the second outer surface of the second mattress element is formed in the at least one head support area is formed (see annotated Fig. above and 0:39 timestamp).
Regarding Claim 21, Bodyguard discloses wherein a plurality of recesses
(48, 52) of the profile formed on the first outer surface of the first mattress element and of the profile formed on the second outer surface of the second mattress element are formed in the at least one shoulder support area are formed (see annotated Fig. above and 0:39 timestamp).
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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anita Coupe can be reached at 571-270-3614. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ERIC J KURILLA/Primary Examiner, Art Unit 3619
