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 .
DETAILED OFFICE ACTION
Reconsideration
The merits of this case have been carefully examined again in light of applicant's response received 05/13/2025. The objections to the specification and drawings have been overcome in view of applicant’s amendments. However, applicant’s amendment also includes information that forms the basis for new specification objections, as set forth below.
Additionally, applicant’s corrected Application Data Sheet (ADS) submitted on 05/13/2025 is not accepted (see 10/01/2025 Petition Decision for more information). Therefore, the present application is not entitled to the benefit of the prior-filed applications under 35 U.S.C. 120. As a result, the “Poultry Pro Feeder” reference and EU-008585830-0001 still qualify as prior art and the rejections of record under 35 U.S.C. 102(a)(1) are not overcome. Accordingly, final rejections under 35 U.S.C. 102(a)(1) are set forth below.
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).
Specification
The specification is objected to as follows:
Descriptions of the drawings are not required to be written in any particular format; however, they should describe the views of the drawings clearly and accurately. See MPEP § 1503.01(II). The 05/13/2025 amended Fig. 1 description is somewhat unclear because it is missing the article “a” and a comma between the angle descriptors of “front” and “bottom”. For clarity, the Fig. 1 description should be amended to correct the grammatical errors. The examiner suggests:
-- Fig. 1 is a right, front, bottom isometric view of a poultry feeder showing my new design; --
Claim Rejection -- 35 U.S.C. 102(a)(1)
The claim is FINALLY REJECTED under 35 U.S.C. 102(a)(1) as being anticipated by the “Poultry Pro Feeder: DIY Port PVC Gravity Fed Chicken Feeder” reference (Citation No. U on PTO-892 filed 02/13/2025) 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 appearance of the “Poultry Pro Feeder” reference 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) and MPEP § 1504.02.
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Claimed design, Fig. 4
“Poultry Pro Feeder” reference
The claim is further FINALLY REJECTED under 35 U.S.C. 102(a)(1) as being anticipated by Foreign Patent Document No. EU-008585830-0001 (Citation No. N on PTO-892 filed 02/13/2025) 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 appearance of EU-008585830-0001 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) and MPEP § 1504.02.
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Claimed design, Fig. 1
EU-008585830-0001
“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 F.3d 1308 (Fed. Cir. 2001) (citing Gorham Mfg. 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, 589 F.3d at 1243 (citing Litton Sys., Inc. v. Whirlpool Corp., 728 F.2d 1423, 1444 (Fed. Cir. 1984)).
Examiner Comment -- Domestic Benefit under 35 U.S.C. 120
Without the benefit of the filing date of the prior-filed applications, the “Poultry Pro Feeder” reference and EU-008585830-0001 qualify as prior art for the final rejections under 35 U.S.C. 102(a)(1) set forth above.
The present application (29/966,004) appears to be a continuation of:
Application No. 29/946,487, filed on 06/08/2024 (now Patent No. D1,064,430 - issued 02/25/2025), which is a continuation of:
Application No. 29/913,827, filed on 10/10/2023 (now Patent No. D1,031,181 - issued 06/11/2024), which is a continuation of:
Application No. 29/735,857, filed on 05/26/2020 (now Patent No. D1,014,867 - issued 02/13/2024).
To claim the benefit of the prior-filed applications, applicant should submit a corrected ADS with a proper domestic benefit claim that includes the full information for the chain of applications listed above. Application No. 29/913,818, filed on 10/10/2023 (now Patent No. D1,021,277 - issued 04/02/2024) is not part of the chain of the prior-filed applications, and should not be included on the corrected ADS.
Furthermore, the present application (29/966,004) does not appear to be a continuation of Application No. 29/965,998, filed on 09/30/2024. The disclosure of a continuation application must be the same as the disclosure of the original application; i.e., the continuation must not include anything which would constitute new matter if inserted in the original application. See MPEP § 201.07 and MPEP § 211.05(I)(B). The disclosure of the present application (29/966,004) includes subject matter which would constitute new matter if inserted in Application No. 29/965,998; specifically, the outer edge of the feeder at the base of the spout element and the ridged collar element of the feeder. In other words, Application No. 29/965,998 does not disclose the claimed invention in the manner required by 35 U.S.C 112(a). See MPEP § 1504.20. Therefore, Application No. 29/965,998, filed on 09/30/2024 is not part of the chain of prior-filed applications, and should not be included on the corrected ADS.
Applicant may refer to 37 CFR 1.76(c) and the 10/01/2025 Petition Decision for more information on filing a corrected ADS. A corrected ADS must identify the information that is being changed with underlining for insertions and strike-through or brackets for text removed. In general, the identification of the information being changed should be made relative to the most recent filing receipt. Use of the corrected Web-based ADS is recommended because it will pre-populate with information of record, then applicant can type in the desired changes and the system will create a PDF version with the appropriate strike-through and underlining. Applicant may visit https://www.uspto.gov/patents/apply/forms/important-information-completing-application-data-sheet-ads for more information.
Conclusion
The claimed design stands finally rejected under 35 U.S.C. 102(a)(1), as set forth above.
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.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jennifer B. Salazar whose telephone number is 703-756-1475. The examiner can normally be reached Monday - Friday 9:00 AM - 5:00 PM EST.
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/J.B.S./
Examiner, Art Unit 2936
/MESSINA L SMITH/Supervisory Patent Examiner, Art Unit 2936