Ex Parte Stolpmann et al

Board of Patent Appeals and Interferences

Jun 4, 2009

11143004 (B.P.A.I. Jun. 4, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JAMES R. STOLPMANN,
ERIC R. MEYER, and GREGORY W. BRANSON
____________

Appeal 2009-1861
Application 11/143,004
Technology Center 3600
____________

Decided: 1June 4, 2009
____________

Before LORA M. GREEN, RICHARD M. LEBOVITZ, and
MELANIE McCOLLUM, Administrative Patent Judges.

LEBOVITZ, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as provided for in 37 C.F.R. § 1.304, begins to run from the decided
date shown on this page of the decision. The time period does not run from
the Mail Date (paper delivery) or Notification Date (electronic delivery).

Appeal 2009-1861
Application 11/143,004

This is a decision on appeal from the Examiner’s final rejection of
claims 1-36. Jurisdiction for this appeal is under 35 U.S.C. § 6(b). We
affirm-in-part.

STATEMENT OF THE CASE
The claims are directed to mattresses configured to support a patient.
Claims 1-36 are pending and were rejected by the Examiner as follows:
1. Claims 1, 5-7, 9, and 10 under 35 U.S.C. § 102(b) as
anticipated by Maier (U.S. Pat. No. 6,223,369 B1, May 1,
2001) (Ans. 3);
2. Claims 2, 3, 16-21, and 23-25 under 35 U.S.C. § 103(a) as
obvious over Maier and Fiore (U.S. Pat. No. 4,665,573, May
19, 1987) (Ans. 4);
3. Claim 4 under 35 U.S.C. § 103(a) as obvious over Maier and
Ward (U.S. Pat. No. 6,202,239 B1, Mar. 20, 2001) (Ans. 7);
4. Claims 8, 11, and 15 under 35 U.S.C. § 103(a) as obvious over
Maier (Ans. 8);
5. Claim 12 under 35 U.S.C. § 103(a) as obvious over Maier and
Stolpmann (U.S. Pat. No. 6,212,718 B1, Apr. 10, 2001) (Ans.
8);
6. Claim 13 and 14 under 35 U.S.C. § 103(a) as obvious over
Maier and Henley (U.S. Pat. No. 6,430,766 B1, Aug. 13, 2002)
(Ans. 9);
7. Claim 22 stands rejected under 35 U.S.C. § 103(a) as obvious
over Maier, Fiore, Ward (Ans. 10);
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8. Claims 26, 29-32, and 34 under 35 U.S.C. § 103(a) as obvious
over Maier, Fiore, and Stolpmann (Ans. 10);
9. Claims 27 and 28 under 35 U.S.C. § 103(a) as obvious over
Maier, Fiore, and Henley (Ans. 13).
10. Claim 33 under 35 U.S.C. § 103(a) as obvious over Maier,
Fiore, Stolpmann, and Ward (Ans. 13); and
11. Claims 35 and 36 under 35 U.S.C. § 103(a) as obvious over
Maier, Fiore, Stolpmann, and Henley (Ans. 13).
Claims 1, 16, and 29 are representative and read as follows:
1. A mattress configured to support a patient, the mattress
comprising: a head section; a foot section; a seat section
positioned intermediate the head section and the foot section, the
head section, the foot section, and the seat section cooperating to
define a patient support surface; and wherein the foot section
includes a leg portion, a heel pressure relief portion, and a raised
calf support portion positioned intermediate the leg portion and the
heel pressure relief portion.

16. A mattress configured to support a patient, the mattress
comprising: a plurality of longitudinally extending support
bladders; and an upper foam layer supported above the support
bladders and including: a first portion, a second portion having a
substantially planar lower surface, the second portion being
positioned proximate the first portion, an upper surface defined by
the first portion and the second portion, the upper surface within
the second portion including an apex, and a plurality of
longitudinally extending, downwardly facing arcuate recesses
extending within the first portion and configured to receive an
upper portion of the support bladders, the upper surface lowering
relative to the support bladders as the upper surface extends from
the apex in a direction from the second portion to the first portion.

29. A mattress comprising: an upper foam layer including an upper
surface; a plurality of longitudinally extending support bladders
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positioned below the upper foam layer; a lower foam layer
positioned below the support bladders and configured to direct
forces applied to the upper surface to a deck assembly supporting
the mattress; and wherein a stiffness of the lower foam layer is
greater than a stiffness of at least a portion of the upper foam layer.

1. ANTICIPATION BY MAIER
Claims 1, 5-7, 9, and 10 stand rejected under 35 U.S.C. 102(b) as
anticipated by Maier (Ans. 3).
Facts2
The Maier patent
1. Maier describes a patient support surface which comprises a “foam
topper” construction that works in concert with integrated air tubes or
cylinders to provide improved patient safety and “flexible, progressive
support” (Maier, col. 2, ll. 15-51).
2. An objective of the patient support surface is “to provide improved heel
comfort by redistributing and equalizing loads to more relatively pressure-
tolerant lower legs and calves” (col. 2, ll. 52-54). This is achieved by
providing downwardly sloping “heel pressure relief sections” incorporated
into the foam mattress topper (id. at 54-60).
3. Figure 2, reproduced below,3 shows an exploded view of a patient
support surface (34) comprising a sloped foam topper (24), longitudinally
extending arcuate recesses (88, 90, 92, 94, “downwardly facing arches”),

2 The numbered paragraphs are findings of fact and conclusions of fact
(“F”).
3 The figure has been annotated to identify a “lower surface.”
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and air bladders (36, 38, 40, 42, “air cylinders”) which are shown as fitting
into the recesses (col. 6, ll. 9-25 & 40-41).

Figure 2, above, shows a patient support surface of Maier.
4. The arcuate recesses 88, 90, 92, and 94 are described by Maier as running
along the longitudinal length of the foam topper (col. 7, ll. 16-19).
5. Figure 5, reproduced below,4 is an enlarged elevation view of a patient
support surface with a heel pressure relief section in the foam topper (col.
10, ll. 43-47) “intended to support the heel and upper leg portion of an
exemplary patient” (id. at 50-52).

4 The figure has been annotated by adding boxes and labeling the regions
“leg portion”, “raised calf support portion”, and “heel pressure relief
portion” which are the terms used in the appealed claims.
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6. An “overall angular slope is introduced to a portion of the upper support
surface generally 138 . . . as represented by angle generally 140. . . . [S]uch
exact angle may vary in a range, such as from about 4 degrees to about 10
degrees (other angles may be practiced)” (Maier, col. 10, ll. 59-66).

Claim 1
8. Claim 1 is directed to a mattress configured to support a patient
comprising a head section, foot section, and seat section which are
“cooperating to define a patient support surface.”
9. The foot section includes:
• “a leg portion”;
• “a heel pressure relief portion”; and
• “a raised calf support portion positioned intermediate the leg portion
and the heel pressure relief portion.”
10. The term “portion” as recited in claim 1 would be understood by
persons of ordinary skill in the art to mean a “part” of the whole “patient
support surface.”
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Comparison between Claim 1 and Maier
11. As shown in annotated Figure 5 above, Maier’s foam topper has regions
which support the leg (108), calf (112), and heel (136) (F5) and which
therefore meet the claimed limitations of a “leg portion”, “heel relief
portion” and “calf support portion” as recited in claim 1.
12. The calf support portion of Maier’s foam topper is depicted an elevated
with respect to the heel portion 136 – satisfying the limitation of claim 1 of
“a raised calf support portion.”

Analysis
The issue in this rejection involves whether Maier describes a patient
support surface with leg, calf, and heel portions as recited in claim 1. The
Examiner finds that these limitations are by Maier’s description of a foam
topper (Ans. 3).
Appellants contend that Maier does not describe “a raised calf support
portion” as in claim 1 (App. Br. 8).
Applicants’ calf support portion 76 is “raised” because it is
clearly at an elevation higher than both of the neighboring
portions (the leg and heel portions). See FIGS. 7-8. The
reference mattress, by contrast, does not have a raised portion
intermediate two other portions. The portion near 112, although
at a higher elevation than the neighboring portion near 132, is
not “raised” because it is at a lower elevation than the
neighboring portion near 108.
(Id.)
Claim 1 is to mattress comprising a “foot section” that further
“includes . . . a raised calf support portion.” The term “raised” is reasonably
interpreted to mean “elevated” with respect to at least one other portion of
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the mattress. Maier, as found by the Examiner, describes a calf support
region that it elevated with respect to the heel portion 136 (see Fig. 5) –
satisfying the limitation of claim 1 of “a raised calf support portion.”
Appellants argue that the claim requires the elevation to be higher than both
neighboring portions, but they do not identify what language in the claim
would guide the skilled worker to this narrower interpretation. The
description of an embodiment in the Specification which is elevated as
compared to the leg and heel relief portions is not adequate evidence for a
contrary meaning since claims are not ordinarily limited to preferred
embodiments.
Appellants also contend that Maier describes “only two distinct
portions” – a regular portion and a sloped portion (App. Br. 7).
Claim 1 is recited to have head, seat, and foot sections (F8). The foot
section further includes leg, raised calf support, and heel pressure relief
portions (F9). The terms “section” and “portion” would be understood by
persons of ordinary skill in the art to mean a “part” of the whole patient
support surface. A foot section would further be understood in light of the
Specification to mean the part of the surface which supports the foot, and so
on, for each part of the mattress (see Fig. 1 of Spec.). Appellants have not
pointed to any special meaning for the terms. The Examiner properly found
that Maier’s mattress contains each of these sections. For example, as
shown in Figure 5 above, the foot section has three regions which support
the leg, calf, and heel, respectively. The “sloped portion” corresponds to the
heel pressure relief portion of claim 1 and the “regular portion” supports the
remaining body of the occupant, and therefore has head and seat sections as
claimed.
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Claims 5-7, 9, and 10 were not separately argued and therefore fall
with claim 1. See 37 C.F.R. 41.37(c)(1)(vii).

2. OBVIOUSNESS OVER MAIER AND FIORE
Claims 2, 3, 16-21, and 23-25 stand rejected under 35 U.S.C. § 103(a)
as obvious over Maier and Fiore (Ans. 4).

The Fiore patent
13. Fiore describes a contoured body support with thoracic, lumbar, sacral,
and knee support areas (Fiore, col. 2, ll. 18-32).
14. Reproduced below are Figures 2 and 3 showing elevation views of the
contoured body support without and with a person, respectively (Fiore, col.
2, ll. 49-52).

Figures 2 and 3 show elevation views of Fiore’s body support.
15. The upper contoured surface is “shaped to be complemental to and
approximately fit different portions of the human body” (Fiore, col. 3, ll. 20-
23).
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16. “Sacral portion 14 provides an effective foundation for the buttocks and
lower abdomen, and knee portion 15 supports the knees in a naturally bent
position” (Fiore, col. 3, ll. 25-28).
17. The body support, as shown in Figures 2 and 3, has two lateral convex
ridges, one for the lumbar area and the other for the knee area (Fiore, col. 2,
ll. 37-38).
18. The lateral convex ridge of the knee support as shown in Figure 3
extends above the upper leg region (between 14 and 15 in Figure 3) and
above the lower leg/heel region (between 15 and the end of the foot end in
Figure 3).

Claims 2, 18, 19, 23-25
18. Claim 2 is directed to the mattress of claim 1 where “the patient support
surface within the calf support portion extends above the patient support
surface within the leg portion, and the patient support surface within the calf
support portion extends above the patient support surface within the heel
pressure relief portion.” In other words, the “raised calf support portion” is
elevated with respect to both the adjacent leg and heel portions to form a
bump. Figure 3 of the Specification shows an elevated bump with apex 86
within the raised calf support portion (Spec. 7:12-13).

Differences between the prior art and claim 2
19. Maier describes a mattress as in claim 2 with a foot section comprising
an elevated calf support portion (F3).
20. However, Maier does not describe the calf support portion as elevated
with respect to both the adjacent leg and heel regions as in claim 2.
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Reason to combine
21. Persons of ordinary skill in the art would have had reason to provide
Maier’s patient support surface with a bump in the knee support area “to
provide comfort by closely approximating the curve of a body outline” as
taught in the Fiore patent (Ans. 4; see “lateral ridge” in F17-18).

Analysis
Claim 2 is to a mattress with an elevated bump in a “raised calf
support portion” of the claimed mattress (F18). The “raised calf support
portion” is designed to support the calf of a person who is lying supine on
the mattress. To the extent “calf support portion” implies any structure in
addition to the explicitly recited “raised” limitation, it would be understood
to be capable of supporting the calf of a person aligned with it on the
mattress.
Appellants contend that the Examiner erred because Fiore describes a
“convex crest” behind the knees of an occupant of the mattress, while
“Applicants’ construction places the raised calf support behind the patient’s
calves, such that the surface would not closely approximate the contour of
the body” (App. Br. 10).
Figure 3 of Fiore clearly shows the occupant’s calf supported by the
elevated, descending region of the “knee portion 15” (between 15 and the
foot end). Thus, it is “raised” and a “calf support” portion as recited in claim
2.
It appears that Appellants are distinguishing claim 2 from Fiore
because Fiore does not show the occupant’s calf resting on the ascending
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portion of Fiore’s body support (between 14 and 15 of Figure 3). (See App.
Br. 10-11). However, a person using Fiore’s support would be able to rest
any part of the calf on the knee portion 15 depending on how the body was
arranged on the surface and the particular person’s height and body
characteristics. Fiore’s knee support therefore meets all the structural
requirements of claim 2. Appellants have not identified structural features
which are present in claim 2 that are absent from the combination of Maier
and Fiore. (See Ans. 16-19).
Appellants also contend that the Examiner has not articulated a reason
as to
why a skilled artisan seeking to provide relief of interface
pressure between a mattress and the heels of a supine patient in
order to prevent breakdown of the skin (an external organ)
would find suggestions or motivations in the literature
addressing reduction of mechanical stresses on the spine (an
internal structure) irrespective of a patient's position (supine,
prone or side resting).
(App. Br. 11.)
Because both Maier and Fiore describe patient support surfaces, they
would be considered reasonably pertinent and within the same field of
endeavor addressed by the claimed mattress. In addition to this, as pointed
out by the Examiner, both patents describe mattresses with raised calf
support areas (Ans. 17-19), the same feature relied upon in claim 2 for
patentability.
Figure 5 of Maier shows the calf elevated with respect to the heel.
Figure 3 of Fiore shows the calf elevated with respect to the foot and also
with the lower leg portion. Maier specifically addresses the need to improve
heel support by providing a surface to redistribute load from the heels to the
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calves and lower legs (F2). It achieves this by downwardly sloping the heel
support region (F2 & 6) as does claim 2. Fiore also shows the heel arranged
in downwardly sloping direction, but with the leg region about the knee area
downwardly sloping, as well (see Fig. 5). It is reasonable, as stated by the
Examiner, that persons of ordinary skill in the art would have further sought
to improve a patient’s comfort by adopting Fiore’s body contour approach.
(See Ans. 19). Thus, a reason has been expressly articulated as to why
persons of ordinary skill in the art would have been combined with Maier
and Fiore. As noted by the United States Supreme Court,
If a person of ordinary skill can implement a predictable
variation, § 103 likely bars its patentability. For the same
reason, if a technique has been used to improve one device [or
composition], and a person of ordinary skill would recognize
that it would improve similar devices [or compositions] in the
same way, using the technique is obvious unless its application
is beyond his or her skill.
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007).

Claim 3
22. Claim 3 is to the mattress of claim 2 with the elevated bump in the
raised calf support portion, where “the patient support surface is angled
downwardly from horizontal by an angle substantially equal to 8 degrees as
the patient support surface extends from the calf support portion to the heel.”
23. Maier describes the angle of repose in the heel relief section to be from
4-10 degrees which encompasses the claimed angle of 8 degree. (See Ans.
5).

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Analysis
Appellants acknowledge that Maier’s angular orientation encompasses
the claimed 8 degree limitation (App. Br. 11), but contend that the Examiner
erred in failing to articulate “a plausible line of reasoning with a rational
underpinning to demonstrate why a skilled artisan would conclude that the
same angular range would be effective in a mattress architecture featuring a
raised calf portion aligned with the occupant’s calves” (id. at 12).
Maier explicitly describes its downwardly sloping “heel pressure
relief section” as to improve heel comfort by redistributing pressure (F2) and
teaches a useful angle as between 4 and 10 degrees (F6). These teachings
provide a logical reason as to why persons of ordinary skill in the art would
have selected the claimed angle of 8 degrees: to relieve pressure from the
heel area. Appellants have not identified any error in this logic.

Claims 16 & 21
Claim 16 is to mattress with longitudinally extending support barriers
and an upper foam layer supported above the support barriers. The upper
foam layer has, inter alia, “a first portion” and “a second portion having a
substantially planar lower surface.”
The Examiner finds that the lower edges of Maier’s foam topper
(indicated by an arrow in Maier’s Figure 2) (F3) meet the claimed limitation
of a “substantially planar lower surface” (Ans. 20-21).
Appellants contend that the Examiner erred.
“[C]laims are also interpreted in light of the [S]pecification,
which, in combination with the illustrations, makes it clear that
‘having a substantially planar lower surface’ refers to an overall
attribute of the lower surface of the second portion. As a result
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of the Examiner’s misinterpretation, the Examiner's analysis
incorrectly establishes a correspondence between a region of
the reference matress [sic] that is mostly scalloped and a region
of Applicants’ mattress that is substantially planar.
(App. Br. 13.)
The Examiner’s interpretation is reasonable because the normal
meaning of the word “having” is “possessing” or “containing.”5 Appellants
ask us to read the term “having” more restrictively, but they have not
identified words in the claim or definitions in the Specification to guide us to
their narrower interpretation. While there may be embodiments in the
Specification which have a substantially planar surface as the “overall
attribute” of the second portion’s lower surface (App. Br. 13), claim
limitations are not ordinarily imported from a specification into the claims.
See Sjolund v. Musland, 847 F.2d 1573, 1581 (Fed. Cir. 1988) (“[W]hile it is
true that claims are to be interpreted in light of the [S]pecification and with a
view to ascertaining the invention, it does not follow that limitations from
the [S]pecification may be read into the claims.”); see also In re Van Geuns,
988 F.2d 1181, 1184 (Fed. Cir. 1993) (“[L]imitations are not to be read into
the claims from the specification.”). The Examiner’s response to
Appellants’ argument on pages 20-24 of the Answer is complete and we
adopt it as our own.

Claim 17
Claim 17 is to the mattress of claim 16 further comprising heel relief
and raised calf support portions. These portions are the same as those
recited in claim 1, and the Examiner relied on the same discloses as for

5 The Random House College Dictionary 606, Rev. Ed. 1982.
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claim 1 in rejecting claim 16. Appellants argue as they did for claim 1 (App.
Br. 14-15). Appellants’ arguments are not persuasive for the same reasons
we considered them not to be for claim 1.

Claim 20
Claim 20 is the mattress of claim 16 where “the upper surface at the
apex is approximately 0.75 inches higher than the upper surface in the first
portion.”
The Examiner finds that “the skilled artisan would use and/or vary the
dimensions of components used in the construction of an invention as
needed, this particular elevation is considered to be within the ordinary level
of skill in the art and obvious to the skilled artisan; i.e. it is within an
ordinary level of skill to make the apex approximately 0.75 inches higher
than the upper surface in the first portion” (Ans. 25)
We have considered Appellants’ arguments, but do not find them
persuasive. Both Maier and Fiore describe the advantages of raised portions
of a patient support surface. Maier describes preferred angular slopes,
indicating that other “angles may be practiced” (F6), but gives no specific
dimensions for the height of the elevation. Thus, the evidence supports the
Examiner’s finding that it would be within the level of skill to make such a
determination.
Summary
The obviousness rejection of claims 2, 3, 16, 17, 20, and 21 is
affirmed. Claims 28, 19, and 23-25 were not separately argued and thus fall
with claims 2, 3, 16, 17, 20, and 21.

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3. OBVIOUSNESS OVER MAIER AND WARD
Claim 4 stands rejected under 35 U.S.C. § 103(a) as obvious over
Maier and Ward (Ans. 7).

The Ward patent
24. Ward describes a support for the human body “to aid in distributing
weight across the entire support and to aid in eliminating body pressure
points, e.g., head, shoulders, hips and feet, that are usually associated with
common, spring-supported mattresses” (Ward, at col. 1, ll. 54-60).
25. The support comprises a middle foam layer comprising identifiable
zones which vary in firmness or resistance “designed to reduce the pressure
on the body at the head/shoulders, hips, and legs/feet of a user of virtually
any body size” (Ward, at col. 2, ll. 40-56).
26. Ward states that variations in firmness may be achieved by changing the
sculpted sinusoidal pattern of the foam (Ward, at col. 2, ll. 49-51). Preferred
sinusoids are described, but Ward generally states that the firmness may be
changed by varying the amplitude, depth, thickness, etc. of the sculpted
pattern (id. at col. 2, l. 49 to col. 3, l. 4).

Difference between the prior art and claim 4
27. Claim 4 is to the mattress of claim 1, where “the heel pressure relief
portion includes a foam layer having a first stiffness, and the calf support
portion includes a foam layer having a second stiffness, the first stiffness
being less than the second stiffness.”
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28. Maier does not describe a foam topper which varies in stiffness along its
length (Ans. 7).
29. Neither Maier nor Ward describes a mattress with a heel pressure relief
portion which is less stiff than a calf support portion.

Level of skill in the art
30. Persons of ordinary skill in the art had the knowledge to vary the
stiffness of a foam layer to achieve a desired stiffness level (see F25 & 26).
Such choice would have been routinely made by persons of ordinary skill in
the art when designing a mattress.

Reason to combine
31. Persons of ordinary skill in the art would have had reason to vary the
firmness (“stiffness”) of different regions of Maier’s foam topper to
redistribute weight and eliminate pressure points as taught by Ward (F24 &
25; Ans. 7-8), particularly in the heel region as described by Maier (F2).

Analysis
Claim 4 differs from Maier in being drawn to mattress in which the
heel pressure relief section is less stiff than a calf support section (F27 &
28). Although Maier does not describe a foam topper which varies in
stiffness, Ward teaches varying the stiffness of a mattress along its length in
order to redistribute body weight and eliminate pressure points – providing a
rationale to have modified Maier’s foam topper (F31). Neither Maier nor
Ward describe forming the mattress with a less stiff heel pressure relief
section as in claim 4 (F29), but it was within the level of ordinary skill in the
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art to make such a choice to achieve the desired stiffness level (F30) and to
relieve pressure in the heel region as described in the Maier patent (F2).
Appellants contend that Ward teaches away from the claimed
invention because it suggests the same stiffness for the portion of the foam
layer corresponding to the occupant’s calves and feet (App. Br. 17-18). The
Examiner has thoroughly responded to this argument (Ans. 26-27); we agree
and therefore adopt the Examiner’s position as our own.

4. OBVIOUSNESS OVER MAIER
Claims 8, 11, and 15 stand rejected under 35 U.S.C. § 103(a) as
obvious over Maier (Ans. 8).

Claim 8
Claim 8 is to the mattress of claim 1,6 further comprising air bladders
extending from the head to foot section, an upper foam layer positioned
above the air bladders, and with downwardly facing arcuate recesses in the
foam layer which “do not extend within the calf support portion.”
The Examiner contends that it would have been obvious “to not
extend the arcuate recesses within the calf portion as a matter of saving on
manufacturing costs (as not having to define/manufacture the arcuate
recesses)” (Ans. 8).
The Examiner has not met the burden of establishing prima facie
obviousness of claim 8. The Examiner has not provided any evidence that
eliminating the recesses would save on manufacturing costs. As pointed out
by Appellants, producing two different geometric shapes (planar and

6 Claim 8 “depends” on claim 1 indirectly through claims 7, 6, and 5.
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recessed) would introduce more complexity to the manufacturing process
than making a single shape, and would just as likely add to the cost (App.
Br. 18).

Claims 11 and 15
The Examiner provided logical and fact-based reasons as to why the
subject matter of claims 11 and 15 would have been obvious to persons of
ordinary skill in the art (Ans. 8, 28 & 29). As we agree with the Examiner’s
reasoning, and Appellants have not identified any infirmity with the
Examiner’s facts or logic, the rejection of claims 11 and 15 is affirmed.

5. OBVIOUSNESS OVER MAIER AND STOLPMANN
Claim 12 stands rejected under 35 U.S.C. § 103(a) as obvious over
Maier and Stolpmann (Ans. 8).
The Examiner’s rationale for the rejection is set forth on pages 8-9 of
the Answer. Appellants do not address the merits of the rejection, but state
that claim 12 “depends directly from claim 1, and is therefore allowable due
to its dependence and the additional limitations that it recites” (App. Br. 20).
As we affirm the rejection of claim 1, we also affirm the rejection of claim
12 for the same reasons as claim 1 and additionally for the reasons set forth
by the Examiner on pages 8-9 of the Answer.

6. OBVIOUSNESS OVER MAIER AND HENLEY
Claim 13 and 14 stand rejected under 35 U.S.C. § 103(a) as obvious
over Maier and Henley (Ans. 9). The Examiner’s rationale for the rejection
is set forth on pages 9-10 of the Answer. Appellants do not address the
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merits of the rejection, but state that claims 13 and 14 “depend directly or
indirectly from claim 1, and therefore are also allowable due to their
dependence and the additional limitations that they recite” (App. Br. 21). As
we affirm the rejection of claim 1, we also affirm the rejection of claims 13
and 14 for the same reasons as claim 1 and additionally for the reasons set
forth by the Examiner on pages 9-10 of the Answer.

7. OBVIOUSNESS OVER MAIER, FIORE, AND WARD
Claim 22 stands rejected under 35 U.S.C. § 103(a) as obvious over
Maier, Fiore, and Ward (Ans. 10).
Claim 22 is drawn to the mattress of claim 16, comprising an upper
foam layer “including” a first portion with a first stiffness and a second
portion with a second stiffnesses, where the second portion has an apex, and
the first stiffness is less than the second stiffness.
In rejecting claim 22, the Examiner relied on the same rationale as for
claim 4, where Ward combined with Maier provides a reason for forming a
foam layer with differing stiffness amounts (Ans. 10, 30-31; FF24-26, 30, &
31).
Appellants contend
Ward et al. offer no suggestion of how to distribute the stiffness
longitudinally on a mattress having relatively higher and lower
portions of its upper surface. Should the softness correspond to
a more elevated part of the mattress and the stiffness correspond
to a less elevated portion, or vice versa? The reference is silent,
and the Examiner doesn't articulate a line of reasoning
supported by a rational underpinning to explain how to
distribute the stiffness of Ward et al. on a mattress having
different elevations.
(App. Br. 22.)
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Maier expressly teaches relieving heel pressure by providing a
downwardly sloping foam support surface (F2). Like Maier, Ward’s
objective is to relieve pressure, but Ward solves it differently – using foam
layers with varying stiffness (F24 & 25). As both approaches are used in the
claimed mattress for their known and expected advantages, the combination
would have been considered obvious at the time the application was filed.
As held by the Supreme Court in KSR Int’l Co. v. Teleflex Inc., 550 U.S. at
401, the “combination of familiar elements according to known methods is
likely to be obvious when it does no more than yield predictable results.”
When “a patent ‘simply arranges old elements with each performing the
same function it had been known to perform’ and yields no more than one
would expect from such an arrangement, the combination is obvious.” Id. at
417.
As to the choice of what parts of the mattress should be made stiffer
than others, each of Maier and Ward provides guidance: to relieve pressure
in the heel region (Maier) by varying the foam stiffness (Ward). Such
choices would have been routinely made by persons of ordinary skill in the
art when designing a mattress to achieve the specific goals described in the
Maier and Ward patents (F30-31). See also Ans. 30-31 which articulately
explains this rationale.
When there is a design need or market pressure to solve a
problem and there are a finite number of identified, predictable
solutions, a person of ordinary skill has good reason to pursue
the known options within his or her technical grasp. If this leads
to the anticipated success, it is likely the product not of
innovation but of ordinary skill and common sense. In that
instance the fact that a combination was obvious to try might
show that it was obvious under § 103.
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421.
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8. OBVIOUSNESS OVER MAIER, FIORE, AND STOLPMANN
Claims 26, 29-32, and 34 stand rejected under 35 U.S.C. § 103(a) as
obvious over Maier, Fiore, and Stolpmann (Ans. 10).

The Stolpmann patent
32. Stolpmann describes a “composite mattress comprising a lower foam
layer (48) positioned below the support bladders (52) and configured to
direct forces applied to the uppers surface to a deck assembly supporting the
mattress” (Ans. 10; Stolpmann, col. 6, ll. 14-20; 28-44; Fig. 2).
33. Stolpmann also describes a lower foam layer comprised of foam blocks
50 which underlie the air bladders 52 (Stolpmann, col. 10, ll. 50-55).
Firmness “of the foam blocks 50 which support air bladders 52 of respective
back, seat, thigh, and foot zones . . . may vary from one another” (id.)
34. The foam block 50 supports the air bladders (Stolpmann, col. 8, ll. 41-
51).

Claims 26, 29-32, and 34
Claim 29 is directed to a mattress comprising, inter alia, an upper
foam layer, support bladders below the upper foam layer, and a lower foam
layer beneath the bladders, where the stiffness of the lower foam layer is
greater than the stiffness of the upper foam layer.

Analysis
Maier describes a mattress with an upper foam top as in claim 29, but
not with a lower foam layer underneath support bladders as recited in the
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claim. As with claim 29, Stolpmann describes a mattress with foam layers
48 and 50 below support bladders, but not the upper foam layer. The
Examiner reasons that it would have been obvious to have combined Maier’s
upper foam layer with Stolpmann’s lower foam layer to provide a firm and
supportive base to the mattress (Ans. 11, 33).
Appellants contend that there is no evidence to support the
obviousness of “the stiffness of the lower foam layer being greater than that
of at least a portion of the upper foam layer” (id.).
The Examiner has the initial burden of coming forward with evidence
to establish prima facie obviousness. Here, the Examiner contends that it
would have been obvious to provide a firm lower layer beneath the support
bladders, but provides no persuasive reason or evidence as to why the lower
layer would have been selected to have a greater stiffness than the upper
layer. In response to Appellants’ argument, the Examiner further cited the
Ward patent for teaching that “such construction is well known in the art”
(Ans. 33). However, Ward’s ”bottom” foam layer 16 is above bladders 65,
not underneath them (FF24; Ward, col. 3, ll. 5-50, and Fig. 1). Thus, Ward
does not support the Examiner’s finding. Accordingly, we reverse the
rejection.
Claims 30, 31, 32, and 34 depend directly or indirectly on claim 29,
and thus incorporate all its limitations. We therefore reverse the rejections
of these claims, as well. Claim 26 also requires the lower foam layer to have
a stiffness greater than at least a portion of the upper foam layer. We reverse
its rejection for the same reason as claim 29.

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9. OBVIOUSNESS OVER MAIER, FIORE, AND HENLEY
Claims 27 and 28 stand rejected under 35 U.S.C. § 103(a) as obvious
over Maier, Fiore, and Henley (Ans. 13).
The Examiner’s rationale for the rejection is set forth on page 13 of
the Answer. Appellants do not address the merits of the rejection, but state
that claims 27 and 28 “depend directly or indirectly from claim 16 and are
therefore allowable due to their dependency and the additional limitations
that they recite” (App. Br. 27). As we have affirmed the rejection of claim
16, we also affirm the rejection of claims 27 and 28 for the same reasons as
claim 1 and additionally for the reasons set forth by the Examiner on page
13 of the Answer.

10. OBVIOUSNESS OVER MAIER, FIORE, STOLPMANN, AND
WARD
Claim 33 stands rejected under 35 U.S.C. § 103(a) as obvious over
Maier, Fiore, Stolpmann, and Ward (Ans. 13).
Claim 33 is to the mattress of claim 30. As we reversed the rejection
of claim 30, and neither Ward nor Fiore cures the deficiency, we also reverse
the rejection of claim 33.

11. OBVIOUSNESS OVER MAIER, FIORE, STOLPMANN, AND
HENLEY
Claims 35 and 36 stand rejected under 35 U.S.C. § 103(a) as obvious
over Maier, Fiore, Stolpmann, and Henley (Ans. 13).
Claims 35 and 36 depend directly or indirectly from claim 29. As we
reversed the rejection of claim 29, and none of the additionally cited
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references cure the deficiency, we also reverse the rejection of claims 35 and
36.
SUMMARY
Claims 1-7, 9-25, 27, and 28 are obvious over the cited prior art. The
obviousness rejections of claims are 1-7, 9-25, 27, and 28 affirmed.
Claim 8 is not obvious over Maier. The obviousness rejection of
claim 8 is reversed.
Claims 26 and 29-36 are not obvious over Maier in combination with
the other cited prior art (see supra). The obviousness rejection of claims 26
and 29-36 is reversed.

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED-IN-PART

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