DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Restriction not Required
This application contains the following embodiments:
Embodiment 1— Figures 1-7
Embodiment 2— Figures 8-14
Multiple embodiments of a single inventive concept may be included in the same design application only if they are patentably indistinct. See In re Rubinfield, 270 F.2d 391, 123 USPQ 210 (CCPA 1959). Embodiments that are patentably distinct from one another do not constitute a single inventive concept and thus may not be included in the same design application. See In re Platner, 155 USPQ 222 (Comm Pat. 1967).
The above-identified embodiments are considered by the examiner to present overall appearances that are basically the same. The differences between embodiments are related to proportions. Specifically, Embodiments 1 and 2 show the same shapes and components either thickened or compressed widthwise. These modifications are found in the prior art and are therefore considered obvious. Presence of invention is as essential to granting of design patent as to granting of mechanical patent; obvious changes in arrangement and proportioning are no more patentable in one case than in the other. See In re Stevens 624 O.G. 366; 81 USPQ. The differences between the appearances of the embodiments are considered minor and patentably indistinct, or are shown to be obvious in view of analogous prior art cited. Accordingly, they are deemed to be obvious variations and are being retained and examined in the same application.
Specification
While descriptions of the figures are not required to be written in any particular format, they must describe the views of the drawing clearly and accurately (MPEP 1503.01(Il)). It is recommended that the Figure 7 and Figure 14 descriptions be amended for clarity and brevity. They should read:
--FIG. 7 is a perspective view of the exercise device of FIGS. 1-6 shown in an environment of use; --
--FIG. 14 is a perspective view of the exercise device of FIGS. 8-13 shown in an environment of use.--
Likewise, the broken line statement does not clearly describe the multiple uses of broken lines shown in the drawings. The broken line description should expressly identify what is represented by the broken lines in addition to defining their relationship to the claimed design (MPEP 1503.02(IIl)). For clarity, the broken line statement should be amended to read:
-- The broken lines shown in FIGS. 1, 3, 7, 8, 10, and 14 depict portions of the exercise device that form no part of the claimed design. The additional broken lines showing the athlete in FIGS. 7 and 14 depict environmental subject matter that also forms no part of the claimed design.--
Claim
For proper form (37 CFR 1.153 or 37 CFR 1.1025), the claim should be amended to read: “I claim: The ornamental design for an EXERCISE DEVICE as shown and described.”
Rejection — 35 U.S.C. § 171 (Non-Statutory Double Patenting)
The claim is provisionally rejected under 35 U.S.C. 171 on the ground of double patenting since it is claiming the same design as that claimed in copending Application No. 29/889,588. This is a provisional double patenting rejection since the conflicting claims have not in fact been patented. See images below.
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Applicant is advised that a terminal disclaimer may not be used to overcome a "same invention" type double patenting rejection. See In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969); MPEP § 804.02.
Conclusion
The claimed design is rejected under 35 U.S.C. § 171, as set forth above.
The references are cited as pertinent prior art. Applicant may view and obtain copies of the cited references by visiting http://www.uspto.gov/patft/index.html and pressing the “Basic Search” or “Advanced Search” button.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to THANH L WONG whose telephone number is (571)272-3093. The examiner can normally be reached Monday through Friday, 9AM-5PM, EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael Stout can be reached at (408)918-7558. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/T.L.W./Examiner, Art Unit 2924
/GEORGE J ULSH/Supervisory Patent Examiner, Art Unit 2925
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