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 .
Foreign Priority
The claim for foreign priority to Chinese Application No. CN202530568379.5, filed 09/24/2025 is acknowledged. Certified copies of the foreign priority documents have been received with the application.
Rejection: 35 U.S.C. 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:
“The 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 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 claim is rejected under 35 U.S.C. 103 as being unpatentable over the Kolbs Pillow first available 12/19/2023 and found on the website https://www.amazon.com/Pillow-Eligible-Reflux-Relief-Jacquard/dp/B0CKXZ6Y8J/ref=cm_cr_arp_d_product_top (hereinafter Kolbs, NPL reference “U”) in view of the Ruqmuis Pillow first available 06/20/2024 and found on the website https://www.amazon.com/Ruqmuis-Pillow-Sleeping-Leg-Elevation/dp/B0D2NL7732/ref=cm_cr_arp_d_product_top (hereinafter Ruqmuis, NPL reference “V”).
Kolbs shows a pillow having design characteristics that are visually similar to those of the claimed design in that they consist of the following:
Visually similar proportions
Overall triangular prism shape
Left and right faces show a “pocket” where the bottom edge of the “pocket” is curved inward away from the outer edge of the article and the edge dividing the face is parallel to the angle of the back side of the article
Pocket is of visually similar placement and proportion
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Kolbs differs from the claimed design in that the back and top edges have a sharper profile and the article includes surface texture. Ruqmuis shows a pillow with visually similar rounded back and top edges free from surface texture as shown in the claimed design.
A designer of ordinary would have been motivated to modify Kolbs by rounding the top and back edges as shown by Ruqmuis because the rounding of corners is an obvious expedient of designs. See In re Peet 101 USPQ 203 (1954). It is noted that as an obvious expedient of designs, more substantially rounded edges are commonplace in the art of pillows as shown in the following prior art references cited: U.S. Patent Documents A-D and G.
A designer of ordinary skill to have motivated to modify Ruqmuis by omitting surface texture because plain surfaces free from texture are commonplace in the art of pillows. See the following prior art references cited showing pillows with plain surfaces: U.S. Patent Documents C-F, H, and J.
Accordingly, it would have been obvious to a designer of ordinary skill in the art before the effective filing date to have modified Kolbs by rounding the top and back edges and by omitting surface texture as shown by Ruqmuis and supported by In re Peet and prior art cited, of which the claimed design would have no patentable distinction over.
Although the invention is not identically disclosed or described as set forth in 35 U.S.C. 102, if the differences between the claimed invention on the prior art are such that the claimed invention as a whole would be obvious before the effective filing date of the claimed invention to a designer having ordinary skill in the art to which the claimed invention pertains, the invention is not patentable.
Rejection: Statutory Double Patenting
The claim is rejected under 35 U.S.C. 171 on the ground of double patenting since it is claiming the same design as that claimed in WIPO (Hague) Design Registration No. DM251044 (Non-Patent Document “W”). See the comparison on the following page.
A design - design statutory double patenting rejection based on 35 U.S.C. 171 prevents the issuance of a second patent for a design already patented. For this type of double patenting rejection to be proper, identical designs with identical scope must be twice claimed. See In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993).
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Applicant is advised that a terminal disclaimer may not be used to overcome a "same invention" type double patenting rejection. In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969); MPEP 804.02.
Conclusion
The claim is rejected under 35 U.S.C. 103 and for statutory double patenting as set forth above.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to HARPER E COMSTOCK whose telephone number is (571)270-3977. The examiner can normally be reached M-F, 10-6 ET.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jennifer Rempfer can be reached at (571) 270-0248. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/H.E.C./Examiner, Art Unit 2932 /JENNIFER L REMPFER/Supervisory Patent Examiner, Art Unit 2932
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