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 1-6 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5 of U.S. Patent No. 12,575,681. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1 and 2 of the instant application are generic to, and therefore anticipate, claim 1 of the reference patent. Additionally, claims 3, 4, 5, and 6 of the instant application are generic to, and therefore anticipate, claims 2, 3, 4, and 5, respectively, of the reference patent.
Claim Objections
Claims 1 and 10-11 are objected to because of the following informalities:
In claim 1, line 1, “adapted have a mattress support” should read “adapted to have a mattress support”.
In claim 10, line 3 “said end member adapted for securing” should read “said end member and adapted for securing”.
In claim 11, line 1, the quotation marks at the beginning of the claim should be removed.
Appropriate correction is required.
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 1-11 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 limitation "the head and foot portions" in line 7. There is insufficient antecedent basis for this limitation in the claim. For examination purposes, it is assumed “the head and foot portions” was intended to refer to the “first and second portions” introduced in line 5. Claims 2-11 are additionally rejected by virtue of their dependence from claim 1.
Allowable Subject Matter
Claims 1-11 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph and the nonstatutory double patenting rejection set forth in this Office Action, or upon the timely filing of a terminal disclaimer. The following is a statement of reasons for the indication of allowable subject matter:
Regarding claim 1, Zeng (U.S. Publication No. 2020/0187662) is cited as being of interest for disclosing an elevation kit 10, 21, 30, and 40 (Figure 2) adapted to have a mattress support mounted thereon (defined by the iron net shown in Figures 7 and 9, also see paragraphs 0023 and 0025); the elevation kit 21, 30, and 40 being movable between a generally flat position in which the mattress support is generally horizontal (shown in Figure 6) and a raised position in which the mattress support is canted from a first end to a second end (shown in Figures 1-2); the elevation kit 10, 21, 30, and 40 comprising: a base 10 comprised of a first portion (defined by the half of the base 10 which underlies sections 21 and adjacent section 50, Figures 1-2) and a second portion (defined by the portion of the base 10 which underlies section 22 and adjacent section 50, Figures 1 and 3), the first and second portions each comprising an end member and opposed side members such that the head and foot portions are generally U-shaped (see annotated Figure 1, below); a lever member 41, 42, 43, said lever member comprising opposed lever arms 42 and first transverse member 41 extending between said opposed lever arms 42 (Figure 1 and paragraphs 0031-0032); said lever arms 42 being pivotally connected at a bottom end to said side members of said second portion 10 of said base (via the chassis crossbar 11, Figure 2) between the end member of said second portion and the overlap area of said base (see annotated Figure 1, below); said lever member 41, 42, 43 including a roller 43 proximate a free end of each arm 42 (Figure 2 and paragraphs 0030-0032); a tilt member 21 comprising a pair of opposed tilt member arms and an end member extending between said tilt member arms at a head end of said tilt member arms (see annotated Figure 1, below); said tilt member arms being shorter the overall length of said base 10 (see annotated Figure 1, below); each arm including an inwardly facing track 45 and 44 extending rearwardly from said tilt member end member (see annotated Figure 1, below and Figure 2); said rollers 43 of said lever member 41, 42, 43 being received in said tracks 45 and 44; and a drive assembly 30 comprising an extendable/retractable member 32; said drive assembly being pivotally connected at a first end to said base 10 and being pivotally connected at a second end to said tilt member (at cross member 41, Figure 2 and paragraphs 0031-0032); whereby, activation of said drive assembly 30 causes a length of said extendable/retractable member 32 to alter thereby adjusting an angular position between said tilt member 41, 42, 43 and said base 10 (Figures 1-2 and 6 and paragraphs 0031-0032).
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Zeng does not disclose the side members of the first and second portions overlap each other at respective ends thereof to define an overlap area of the base, a fastener extending through the side members of the first and second portions to pivotally connect the first and second portions together, said fastener defining a pivot axle for said base, whereby the base is capable of being folded in a position wherein one of the first and second portions nests within the other of the first and second portions; a locking element which is adapted to secure the base in an unfolded position in which the side members of said first and second portions of said base are generally parallel and are generally in a common plane; and said lever member comprises a second transverse member between said opposed lever arms which is spaced from the first transverse member along said opposed lever arms.
Chung (U.S. Publication No. 2024/0197076) is cited as being of interest for teaching the first and second portions each comprising opposed side members 211 and 221 such that the head and foot portions are generally U-shaped (Figure 5)d the side members of the head and foot portions 211 and 221 overlap each other at respective ends thereof to define an overlap area of the base (generally indicated at 23, Figure 5, also see Figure 6 and paragraph 0031) a fastener 23 extending through the side members of the first and second portions 211 and 221 to pivotally connect the first and second portions together (Figure 6 and paragraph 0031), said fastener 23 defining a pivot axle for said base, whereby the base 2 is capable of being folded in a position wherein one of the first and second portions 21 and 22 nests within the other of the head and foot portions 21 and 22 (Figure 13); a locking element 24 which is adapted to secure the base 2 in an unfolded position in which the side members of said the first and second portions 211 and 221 of said base 2 are generally parallel and in generally a common plane (Figures 5-7 and paragraph 0032).
Smith (U.S. Publication No. 2024/0260759) is cited as being of interest for teaching said lever member 80 comprising opposed lever arms 82 and first and second transverse members 94 and 96 between said opposed lever arms 82 and spaced from each other along said opposed lever arms 82 (Figures 3-4 and paragraph 0050).
None of the prior art cited above, either alone or in combination, disclose, teach, or suggest the tilt member being positioned at least in part over the second portion of the base, said tilt member being adapted, at said head end of said tilt member, to have the mattress support connected thereto.
Ren (U.S. Publication No. 2020/0397147) is cited as being of interest for teaching said mattress support comprising a head portion 1, 2, and 6, and a foot portion 8 and 12 which are pivotally connected, whereby the head and foot portion of said mattress support frame can be pivoted about a pivot axis between a folded position (Figure 3) and a planar open position (Figure 1).
However, there would be no motivation to combine the teaching of Ren for said mattress support frame with the adjustable mattress support of Zeng. The mattress support of Zeng is designed to be “ultra-thin”, meaning, when in the folded position shown in Figures 8-9 and described in paragraph 0007, the total bed frame is less than or equal to about 10cm in thickness. Ren requires the use of a non-foldable frame 18 positioned below the base 20 in order to provide the tilting mechanism that allows for the bed, from the head to the foot portion, to pivot around a single pivot axis. Modifying Zeng with this additional frame would increase the bulk of the entire mattress support, making Zeng unsuitable for its intended purpose of being an ultra-thin, foldable bed frame. As such there is no disclosure, teaching, or suggestion in the prior art such that a reasonable prior art rejection of claim 1 may be reasonably maintained.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Helsel (U.S. Patent No. 2,807,174) which discloses a tiltable bed frame comprising a track.
Stokesbary (U.S. Publication No. 2023/0363543) which discloses a bed frame which is tiltable from the head end to the foot end about a single axis.
Huang (U.S. Publication No. 2020/0078238) which discloses a tiltable bed frame comprising a track and a lever member with a roller.
Choi (U.S. Publication No. 2019/0328593) which discloses a tiltable bed frame comprising a track and a lever member with a roller.
Barr (U.S. Patent No. 10,306,994) which discloses a tiltable bed frame comprising lever member with a roller.
Butler (U.S. Patent No. 4,715,073) which discloses a bed frame which is tiltable from the head end to the foot end about a single axis.
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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/ALISON N LABARGE/Examiner, Art Unit 3679
/Matthew Troutman/Supervisory Patent Examiner, Art Unit 3679
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