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 .
Examiner’s CommentWhile the “Upper Echelon Backpack Cooler” from 1/26/2021 looks similar to the claimed design, a 102 rejection was not issued because in the related application 29/865636 a 102 was given and overcome by the applicants affidavit. This is the same reference from the prior application.
Claim rejections
The claim is rejected under 35 U.S.C. 112(a) and (b) or 35 U.S.C. 112 (pre-AIA ), first and second paragraphs, as the claimed invention is not described in such full, clear, concise and exact terms as to enable any person skilled in the art to make and use the same, and fails 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.
The claim is indefinite and non-enabling because there are inconsistencies between the views of the drawings that are so great that the overall appearance of the design is unclear (MPEP § 1504.04), specifically:
It is to be noted that the following annotations primarily show the backpack without the right and left covers deployed. However, any rejection applying to the ones without the deployed covers will also effect any views with the covers shown deployed as the views are similar. All views need to be corrected and consistent.
Figs. 5 and 9 show a zipper pull that appears inside of the front pocket. How far inside is this zipper pull? What does this zipper pull appear like from the front? Only the side of the zipper pull is visible. Additionally, how far recessed is the opening for this zipper pull? One way the applicant may overcome this rejection is by converting these interior segments and the interior zipper pull into broken lines and adding a broken line statement to the specification describing the broken lines as not part of the claimed design. See the annotation of Fig. 5 as an example below. Please note: that while not shown, Fig. 9 shares the same issues as Fig. 5.
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The Figs. 3 and 10 rear views show a strap on the bottom of the shoulder strap above the buckle at the bottom. This strap is not shown on the Figs. 4, 5, 12, and 13 side views. See the annotation of Figs. 3 and 5 as an example below.
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The front and rear views show a small ledge at the bottom of the bag. This small ledge does not align to the same ledge shown in the left and right side views. Furthermore, the side views do not show a line for the rear bottom ledge as shown in the rear views. See the annotation as an example below.
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The zipper pulls on the top and rear views are slightly misaligned when compared to the same zipper pulls on the rear view. See the annotation as an example below. Please note: that while only the rear view is shown in the annotation below, this same zipper pull is shown in the top view and also does not align.
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The left and right side pockets in the top view extend around more towards the front of the bag than what is shown in the left and right side views. See the annotation below as an example.
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The bottom view is wider than what is shown in the left and right side views causing it to not align. It is to be noted that the bottom view is also wider than the top view, so it is the bottom view which is inconsistent with the side and top views. See the annotation below as an example.
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The front and rear views shown with the covers in a deployed position show the covers rising above the side zipper seam when deployed. The same covers are not shown above the zipper seam in the left and right views when in a deployed position. See the annotation below as an example.
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Because of the inconsistencies and inadequate disclosure, the claimed design is in fact subject to multiple interpretations, and one of ordinary skill in the art would not be able to make and use the design without the use of conjecture. This renders the claim indefinite and non-enabled.
To overcome this rejection, it is suggested that applicant submit new drawings of the claimed design that show the design clearly and consistently. If certain non-enabled portions of the design cannot be fully enabled without the introduction of new matter, applicant may remove from the claim the areas or portions of the design that are considered indefinite and nonenabling by converting them to broken line and amending the specification to indicate those portions form no part of the claimed design.
Replacement drawings
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.
Avoidance of new matter
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).
References cited
The prior art made of record and not relied upon is considered pertinent to applicant’s disclosure.
Conclusion
Accordingly, the claim is rejected under 35 U.S.C. 112(a) and (b).
Contact information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DUSTIN GRIFFITH whose telephone number is (571)272-1797. The examiner can normally be reached on Monday-Thursday 10:00am – 7:00pm & Friday 1:00PM – 6:00PM EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s trainer, Sandra Snapp can be reached on (571)272-8364. The examiner’s supervisor, Holly Thurman can be reached on (571)272-8068. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/DUSTIN ANDREW GRIFFITH/Examiner, Art Unit 2919