DETAILED ACTION
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 .
Claim Rejections - 35 USC § 112
The claim is rejected under 35 U.S.C. 112(a) and (b) 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 applicant regards as the invention.
The claim is indefinite and nonenabled because portions of the claimed design cannot be understood from the views in which they appear. The appearance of the oblong detail, the inner circular surface dial, and the area below the circle dial are indefinite and nonenbled. The inner surface of the circular dial and the portion of the area below it is unclear as they can be interpreted as flush or recessed and the oblong detail could be a recessed surface, flush surface indicia or a hole. These elements are unclear and cannot be understood without resorting to conjecture. See annotated figure below.
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Fig. 4- the portions annotated above cannot be understood without resorting to conjecture
The inner surfaces of the circular details at the corners of the playable piano desk calendar are indefinite and nonenabled as it is unclear on how they appear. The circular elements have different inner circle surfaces, some surfaces may be flat, flushed, recessed, or a combination. These elements are unclear and cannot be understood without resorting to conjecture. Also, there are nine oblong elements that are unclear as they could be a recessed, raised, or flush. As there is only one view in which these elements appear, the nine oblong elements are not understood. See annotated figure below.
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Fig. 7- annotated portions are not understood without resorting to conjecture
To overcome this portion of the rejection, an option may remove the indicated elements from the claim by converting them to broken line. If elements of the design are converted to broken line, a corresponding description must be inserted into the specification, directly following the figure descriptions, noting that the broken lines illustrate portions of the article which form no part of the claimed design.
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.
As much as the claimed design can be understood the following rejection has been given.
Rejection under 35 U.S.C. 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 rejected under 35 U.S.C. 102(a)(1) as being anticipated by Chinese Patent CN307726351 by Zhang Zhiwei published date December 13, 2022 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.
The shape and appearance of the design of Chinese Patent CN307726351 by Zhang Zhiwei posted date December 13, 2022 is substantially the same as that of the claimed design. The ordinary observer test is the sole test for anticipation. International Seaway Trading Corp. v. Walgreens Corp., 589 F.3d 1233, 1237-38, 1240, 93 USPQ2d 1001 (Fed. Cir. 2009).
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CLAIMED DESIGN
CN307726351
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 comparison takes 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,” (Litton, 728 F.2d at 1444), so too minor differences cannot prevent a finding of anticipation. Int'l Seaway supra. MPEP 706.02(b)(1)(D).
Conclusion
The claim is rejected under 35 U.S.C. 112(a) and (b), and under 35 U.S.C. 102, as set forth above.
The references not relied upon are cited as cumulative prior art.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LAURA H YU whose telephone number is (408)918-7627. The examiner can normally be reached 0800-1800 PST.
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/L.H.Y./Design ExaminerArt Unit 2924
/Garth Rademaker/
Supervisory Patent Examiner, Art Unit 2922