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 25 and 34 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.
Claims 25 and 34 recite the limitation "the active mode”. There is insufficient antecedent basis for this limitation in the claims.
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, 2, 21-27, and 29-36 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fairchild (US 2004/0133978) in view of Ryder (US 4,807,313).
Regarding Claim 1, Fairchild discloses:
A mattress management system for facilitating various tasks associated with a bed, the system comprising:
an inflatable air volume (1) disposed between a mattress (14) and a foundation (12), wherein the inflatable air volume includes an air inlet nozzle (30);
an air pump (34) connectable to the air intake nozzle. Fairchild fails to disclose wherein the
inflatable air volume includes multiple air inlet nozzles and the air pump is alternately connectable to each one of the multiple air intake nozzles. Ryder teaches wherein an inflatable air volume includes multiple air inlet nozzles (14, see Fig. 5) and the air pump is alternately connectable to each one of the multiple air intake nozzles (see Fig. 6). Fairchild and Ryder are analogous art because they are from the same field of endeavor, i.e. inflatable bed devices. It would have been obvious to one having ordinary skill in the art at the time the invention was filed to modify Fairchild as required by Claim 1 and taught by Ryder, since it has been held that mere duplication of essential working parts of a device involve only routine skill in the art. In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960). The motivation to provide additional air intake nozzles would be to have the capability to inflate the air volume from different locations, thus providing a greater convenience.
Regarding Claim 29, Fairchild as modified teaches:
A mattress management system for facilitating various tasks associated with a bed, the system comprising:
an inflatable air volume (Fairchild: 11) disposed between a mattress (Fairchild:14) and a foundation (Fairchild:12), wherein the inflatable air volume includes multiple air inlet nozzles (Ryder: 14), and at least one of the multiple air intake nozzles includes a check valve (Ryder: 20) that allows air to flow in only one direction through the check valve; and
an air pump (Fairchild: 34) alternately connectable at one end to each one of the multiple air intake nozzles (Ryder: see Fig. 6).
Regarding Claims 2 and 30, Fairchild discloses wherein the inflatable volume is formed from two or more sheets of material attached together at a center point of the two or more sheets of material. The claim fails to provide a frame of reference for “center point”. As such, any point of the perimeter that is reasonably centered within the perimeter of the structure can be considered a “center point”.
Regarding Claims 21 and 31, Fairchild discloses wherein the air pump is external to the
mattress and the foundation (see Fig. 1).
Regarding Claims 22 and 32, Fairchild discloses wherein the inflatable air volume is embedded into the mattress or the foundation (via 40).
Regarding Claims 23 and 33, Fairchild fails to disclose wherein the air pump is built in to the mattress or the foundation. Examiner takes Official Notice that is well-known within the art to provide a built-in pump for inflatable bedding devices. It would have been obvious to one having ordinary skill at the time the invention was filed to make the air pump of Fairchild built in to the mattress or the foundation. It has been held that forming in one piece an article which has formerly been formed in two pieces and put together involves only routine skill in the art. Howard v. Detroit Stove Works, 150 U.S. 164 (1893).
Regarding Claim 24, Fairchild as modified wherein at least one of the multiple air intake nozzles includes a check valve (Ryder: 20) that allows air to flow in only one direction through the check valve.
Regarding Claims 25 and 34, Fairchild discloses one or more air vents (29/30) in the inflatable volume, wherein the inflatable volume is formed to enable air to be released from said inflatable air volume through the one or more air vents when the inflatable volume is in the active mode in which air is being pumped into the inflatable air volume to lift the mattress with respect to the foundation.
Regarding Claims 26 and 35, Fairchild discloses wherein the one or more air vents
include one or more air exit holes (29/30).
Regarding Claims 27 and 36, Fairchild discloses wherein the one or more air vents include an adjustable air exit valve for selectively controlling the release of air from said inflatable volume (see “needle valve” in para. [0017] for controlled release of air).
Allowable Subject Matter
Claims 28 and 37 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.
The following is a statement of reasons for the indication of allowable subject matter: Claims 28 and 37 require that the multiple air inlet nozzles include a first air inlet nozzle located on a first side of the inflatable volume and a second air inlet nozzle located on an opposite side of the inflatable volume. Modifying reference Ryder provides for air inlet nozzles 14 on the same side of an inflatable volume. Further modifying Ryder to provide for air inlet nozzles on opposite sides of the inflatable volume would require improper hindsight bias.
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, 2, 21-27, and 29-36 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 of U.S. Patent 12,564,271 in view of Ryder (US 4,807,313).
Although the claims at issue are not identical, they are not patentably distinct from each other because most of the subject matter of the pending claims can be found in their entirety within the subject matter of the claims of US Patent 12,564,271. Patent ‘271 fails to disclose wherein the air volume includes multiple air inlet nozzles (14, see Fig. 5) and the air pump is alternately connectable to each one of the multiple air intake nozzles (see Fig. 6). AS noted in the rejections above, Ryder teaches this aspect. For similar reasons as specified in the rejection of Claim 1 above, it would be obvious to modify Patent ‘271 with the multiple air inlet nozzles and alternately connected pump of Ryder.
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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