FINAL REJECTION
Continuing Prosecution Application - CPA
The request filed on 10/27/2025 for a Continued Prosecution Application (CPA) under 37 CFR1.53(d) based on parent Application No. 29/924,897 is acceptable and a CPA has beenentered.
All claims are drawn to the same invention claimed in the parent application prior to the filing of this Continued Prosecution Application under 37 CFR 1.53(d) and could have been finally rejected on the grounds and art of record in the next Office action. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action after the filing under 37 CFR 1.53(d). 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.
Election Without Traverse Based on Incomplete Reply
Election of Group I was made in the reply filed on 10/27/2025. Since the election did not come with further remarks pointing out any supposed errors in the restriction requirement, this election is now treated as being without traverse (MPEP § 818.01(a)). Groups II- VII have been withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being for the nonelected design.
Drawings
The drawings are objected to for the following reason/s:
Replacement figure 9 of 10/27/2025 is inconsistent with replacement figures 1 and 4 of 10/27/2025. The diagonal surface shading has been removed from figure 9 in the response filed on 10/27/2025, which described the top surface of the case as claimed and transparent. Without this diagonal shading, the scope and appearance of this top surface in replacement figure 9 is inconsistent with what is shown in replacement figures 1 and 4 which do show this shading and therefore describe the surface as claimed and transparent. Replacement figure 9 of 10/27/2025 must be amended to replace the diagonal surface shading that was removed from the top surface for consistency. See below:
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Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. 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.
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).
Specification
The specification is objected to for the following reason/s:
A. The figure descriptions of figures 8 and 9 in the specification of 10/27/2025 are inaccurate. In the replacement drawings of 10/27/2025, the order of figures 8 and 9 on the drawing sheets has been reversed, and the specification has not been updated to reflect this. The Examiner understands that the current description of figure 8 as a “rear” view and figure 9 as a “top view” are reversed based on the drawing disclosure. Descriptions of the figures are not required to be written in any particular format; however, they must describe the views of the drawings clearly and accurately. (MPEP 1503.01 subsection II). Therefore, the figure descriptions of figures 8 and 9 must be amended to accurately describe the views shown in the drawing figures. For example:
-- FIG. 8 is a top view thereof in an open position;
FIG. 9 is a rear view thereof in an open position; --
B. The Examiner understands that figure 1 shows the “lid foam removed” based on the description in the specification, and thus figures 2-11 show the lid foam inserted; but this has not been explicitly described in the specification. To clarify this difference in configuration, the figure description of figures 2-11 should be amended. For example:
-- FIG. 2 is a front view thereof, in a closed position with the lid foam inserted;
FIG. 3 is a rear view thereof, in a closed position with the lid foam inserted; -- and so on.
C. The descriptive statement in the specification of 10/27/2025 is objected to for a lack of clarity because it does not clarify if the structure or features are environmental or portions of the article. All broken lines in the drawing disclosure must be described correctly as environment, boundaries or portions of the article that form no part of the claimed design. For clarity, the broken line statement must be amended. (MPEP § 1503.02, subsection III) For example:
-- The broken lines depict portions of the article and form no part of the claim. --
Claim FINAL Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
The claim is FINALLY rejected under 35 U.S.C. 102(a)(1) as being anticipated by THE DISPLAY VAULT CARD EDITION (Vaulted, photo reviewed on 10/26/2023, cited by the Examiner on 9/26/2024), because the claimed invention was patented, described in a printed publication, or in public use, on sale or otherwise available to the public before the effective filing date of the claimed invention.
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The appearance of Vaulted is substantially the same as that of the claimed design. See e.g., International Seaway Trading Corp. v. Walgreens Corp., 589 F.3d 1233, 1237-38, 1240, 93 USPQ2d 1001 (Fed. Cir. 2009) and MPEP § 1504.02.
Two designs are substantially the same if their resemblance is deceptive to the extent that it would induce an ordinary observer, giving such attention as a purchaser usually gives, to purchase an article having one design supposing it to be the other. Door-Master Corp. v. Yorktowne Inc., 256 F3d.1308 (Fed. Cir. 2001) citing Gorham Co. v. White, 81 U.S. 511, 528 (1871).
The mandated overall comparison is a comparison taking into account significant differences between the two designs, not minor or trivial differences that necessarily exist between any two designs that are not exact copies of one another. Just as “minor differences between a patented design and an accused article's design cannot, and shall not, prevent a finding of infringement,” so too minor differences cannot prevent a finding of anticipation. Int'l Seaway supra (citing Litton Sys., Inc. v. Whirlpool Corp., 728 F.2d at 1444).
Under this standard, the appearance of Vaulted is substantially the same as that of the claimed design. That is, the appearance of the claimed design is deceptive to the extent that it would induce an ordinary observer to purchase it supposing it to be the Vaulted.
Examiner’s response to remarks filed
Applicant’s remarks filed 10/27/2025 have been fully considered, however the statements provided are not sufficient to invoke a 35 U.S.C. 102(b)(1)(A) exception.
These statements do not satisfy the requirements for a 37 CFR 1.130(a) Declaration. In order to invoke a 102(b)(1)(A) exception, Applicant must follow the instructions in MPEP § 2152.06 for overcoming a rejection under 35 U.S.C. 102(a)(1) and file a 37 CFR 1.130(a) Declaration. Specifically, this declaration must include an unequivocal statement that the inventor listed herein invented the subject matter shown on the webpage, AND explains the chain of events that led to the public disclosure of the subject matter. Without an explanation, and supporting evidence, of how and when the subject matter shown in the applied reference was obtained (either directly or indirectly) from an inventor named herein (as required by 102(b)(1)(A)), there is no way for the examiner to conclude that the subject matter shown in the reference was not invented by another.
Conclusion
Applicant's amendment necessitated the new 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).
The references cited but not applied are considered cumulative art related to the claimed design.
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 date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Samantha L Brodowski whose telephone number is (571)272-9142. The examiner can normally be reached Monday-Friday, 8:30 AM-5:00 PM.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Shannon Morgan can be reached on (571)272-7979. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/S.L.B./
Examiner, Art Unit 2915
/JAE LIANG/Supervisory Patent Examiner, Art Unit 2932