DETAILED ACTION
The response filed on November 22, 2024 has been fully and carefully considered. The amendments overcome the points of the rejection under 35 U.S.C. 112(a) and (b) presented in the nonfinal action dated September 18, 2024. However, the amendments to the drawings do not clearly and consistently depict the scope of the claimed design. Therefore, a rejection under 35 U.S.C. 112(b) is presented below as necessitated by amendment. Additionally, the amendments to the drawings fail to comply with the written description requirement, therefore a rejection under 35 U.S.C. 112(a) is presented below as necessitated by amendment. Accordingly, this action is made FINAL as necessitated by amendment.
Objections to the Drawings
The drawings are objected to for the following:
Fig. 10 shows no line, pointed to below, whereas Figs. 1, 4, 5 and 9 show a line.
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This is understood as a minor inconsistency. MPEP 1503.02. Therefore, for accuracy and to avoid confusion, Fig. 10 should be amended to show a line to be consistent with Figs. 1, 4, 5 and 9.
Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. If all the figures on a drawing sheet are canceled, a replacement sheet is not required. A marked-up copy of the drawing sheet (labeled as “Annotated Sheet”) including an annotation showing that all the figures on that drawing sheet have been canceled must be presented in the amendment or remarks section that explains the change to the drawings. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action.
Corrected drawings submitted in response to this Office action must be in compliance with 37 CFR 1.121(d). When preparing new or replacement drawings, be careful to avoid introducing new matter. New matter is prohibited by 35 U.S.C. 132 and 37 CFR 1.121(f).
Objections to the Specification
The specification is objected to for the following:
The title “Toy Rocket” is objectionable for being directed to less than the claimed design shown in full lines in the drawings. Further, when a design is embodied in an article having multiple functions or comprises multiple independent parts or articles that interact with each other, the title must clearly define them as a single entity, for example, combined or combination, set, pair, unit assembly. MPEP 1503.01.I. Therefore, the title should be amended at each occurrence thereof throughout the application, except in the oath or declaration, similar to:
--Toy Rocket Set--
A substitute specification to the claim is required pursuant to 37 CFR 1.125 and must be submitted with markings showing all the changes relative to the immediate prior version of the specification of record. The text of any added subject matter must be shown by underlining the added text. The text of any deleted matter must be shown by strike-through except that double brackets placed before and after the deleted characters may be used to show deletion of five or fewer consecutive characters. The text of any deleted subject matter must be shown by being placed within double brackets if strike-through cannot be easily perceived. An accompanying clean version (without markings) and a statement that the substitute specification contains no new matter must also be supplied. Numbering the paragraphs of the specification of record is not considered a change that must be shown.
Claim Rejection - 35 U.S.C. § 112(b)
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 claim is FINALLY REJECTED under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention. The claim is indefinite because the scope of the claimed design is not clearly and consistently shown, therefore the exact scope of the claimed design cannot be determined without resorting to conjecture.
Specifically,
Fig. 1 shows the element, pointed to below, in claimed solid line, whereas Figs. 2-4, 7-8, and 10 show the same element in broken line and not claimed.
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Figs. 1, 3-5, 7 and 10 show the elements, pointed to below, in claimed solid line, whereas Fig. 9 shows the same elements in broken line and not claimed.
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Figs. 1 and 10 show the element, pointed to below, in broken line and not claimed, whereas Figs. 3-4 and 9 show the same element in claimed solid line.
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Fig. 1 shows the edge line, pointed to below, in broken line and not claimed, whereas Fig. 2 shows the same edge line in claimed solid line.
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Fig. 2 shows the bottom edge and rounded element, pointed to below, in broken line and not claimed, whereas Figs. 3, 4 and 9 show the same bottom edge and rounded element in claimed solid line.
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Figs. 2 and 6 show a broken line inner edge, pointed to below, whereas Figs. 4 and 9 show no broken line inner edge.
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Fig. 2 shows the small, bottom lines, one example of which is pointed to below, in broken line and not claimed, whereas Fig. 6 shows the same small, bottom lines, one example of which is pointed to below, in claimed solid line.
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Accordingly, due to the above inconsistencies, the disclosure does not make clear whether the bottom surface, pointed to below, is claimed or not claimed without resorting to conjecture.
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Fig. 2 shows the edge lines, pointed to below, in broken line and not claimed, whereas Fig. 6 shows the same edge lines in claimed solid line.
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Fig. 3 shows interior elements in claimed solid line, whereas Figs. 1-2, 4 and 8-10 show interior elements in broken line and not claimed.
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The protruding elements, pointed to below, are shown inconsistently throughout Figs. 1-5 and 7-10 in either claimed solid line, broken line, or some elements in broken line and some in claimed solid line. See below for some examples, but not all, found in the drawings.
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The edge line, pointed to below, is shown inconsistently in Figs. 1-4 and 7-10 in either broken line, claimed solid line, or a combination of both broken line and claimed solid line. See below for some examples, but not all, found in the drawings.
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Fig. 8 shows the edge line, pointed to below, in broken line and not claimed, whereas Figs. 2-4 and 9 show the same edge line in claimed solid line.
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Figs. 1, 2, 4 and 9 show the elements, pointed to below, in broken line and not claimed, whereas Figs. 3 and 10 show the same elements with a claimed solid line edge.
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Fig. 9 shows the exterior surface, pointed to below, in broken line and not claimed, whereas Figs. 1-5 and 7-10 show the same exterior surface in claimed solid line.
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Figs. 8 and 10 show the rounded elements, pointed to below, in broken line and not claimed, whereas Figs. 1-5, 7 and 9 show the same rounded elements in claimed solid line.
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Fig. 8 shows the top elements, examples of which are pointed to below, in broken line and not claimed, whereas Figs. 1-5, 7, 9 and 10 show the same top elements in claimed solid line.
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Fig. 10 shows the line, pointed to below, in broken line and not claimed, whereas Fig. 7 shows the same line in claimed solid line.
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Fig. 10 shows the protruding elements, pointed to below, in broken line and not claimed, whereas Figs. 1-5 and 7-9 show the same elements in claimed solid line.
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Fig. 10 show the element, pointed to below, in both claimed solid line and broken line. Therefore, the disclosure does not make clear whether the element is claimed or not claimed without resorting to conjecture.
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Figs. 7, 8 and 10 show the element, pointed to below, in claimed solid line, whereas Fig. 9 shows the same element in broken line and not claimed.
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Fig. 9 does not make clear whether the internal elements are claimed or not claimed without resorting to conjecture. The elements are shown with outer broken lines and the interior hatch lines are shown in claimed solid line. See below for some examples, but not all, found in Fig. 9.
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Fig. 9 shows the portion, pointed to below, in broken line and not claimed, whereas Fig. 10 shows the same portion in claimed solid line.
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Figs. 8-10 show the elements, pointed to below, in broken line and not claimed, whereas Fig. 7 shows the same elements in claimed solid line.
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The disclosure does not make clear whether the surfaces, pointed to below, are claimed or not claimed without resorting to conjecture. The surfaces are continuously connected and are shown with both claimed solid line and broken line edges.
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Applicant may overcome this rejection by amending the drawings to clearly and consistently show the scope of the claimed design.
Claim Rejection - 35 U.S.C. § 112(a)
The claim is FINALLY REJECTED under 35 U.S.C. 112(a) as failing to comply with the description requirement. The original disclosure does not reasonably convey to a designer of ordinary skill in the art that applicant was in possession of the design now claimed at the time the application was filed. See In re Daniels, 144 F.3d 1452, 46 USPQ2d 1788 (Fed. Cir. 1998); In re Rasmussen, 650 F.2d 1212, 211 USPQ 323 (CCPA 1981).
Specifically, there is no support in the original disclosure on April 14, 2021 for removal of the edge line and base line, the straight edge, and a thicker middle element that is positioned closer to the head portion. See below. The current showing of the claimed design has no antecedent basis in the original disclosure and therefore constitutes impermissible new matter.
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To overcome this rejection, applicant may either convincingly demonstrate that the original disclosure establishes that he or she was in possession of the amended claim or amend the drawings to show an edge line, a base line, a notch and the middle element thin and further from the head portion.
Conclusion
The claim stands FINALLY REJECTED under 35 U.S.C. 112(b) and 35 U.S.C. 112(a).
Applicant's amendment necessitated the ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
The prior art made of record and not relied upon is considered pertinent to applicant’s disclosure. The additionally cited references show the state of the art. Applicant may view and obtain copies of the cited references by visiting http://www.uspto.gov/patft/index.html and pressing the “Number Search” button.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to W. BRETT MELLIAR whose telephone number is (571) 272-6130. The examiner can normally be reached on Monday through Thursday from 7am to 5pm ET.
If attempts to reach the examiner by telephone are unsuccessful, Primary Patent Examiner, Marissa Cash can be reached at telephone number 571-272-7506 or the examiner’s AU Supervisor, Erich Herbermann, can be reached at telephone number 571-272-6390.
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/W.B.M/
Examiner, AU 2916
/MARISSA J. CASH/Primary Examiner, Art Unit 2915