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 .
Response to Amendment(s)
The merits of the claim have been reconsidered in light of the remarks/amendment filed by applicant 5/05/2025, however, said amendments were not sufficient to withdraw the rejection under 35 USC 112 (a) and (b). The rejection under 35 USC 112 (a) and (b) is therefore made again and FINAL for the reasons set forth below.
Terminal Disclaimer
The terminal disclaimer filed on 5/05/2025 disclaiming a terminal portion of the statutory term of any patent granted on the instant design application equivalent to the period of abandonment of the instant design application has been reviewed and is accepted. The terminal disclaimer has been recorded.
FINAL Claim Rejection - 35 USC § 112
The claim is rejected under 35 USC 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.
As applied to a design claim, 35 USC 112, paragraph (a) requires that the appearance of the design must be disclosed so as to permit embodiment, exhibition and observation of the same. If the disclosure does not clearly illustrate an aspect(s) essential to the visual appearance of the design as it would appear embodied in an article, the claim is said to be non-enabled. Paragraph (b) of the statute requires the design claim to be directed to a particular appearance. If the particular appearance being claimed cannot be determined from the disclosure, the claim is said to be indefinite. The requirements of paragraphs (a) and (b) are inseparable insofar as the visual appearance of the claimed design is concerned; if a claim is non-enabled due to insufficient visual disclosure, it is also indefinite in that it is open to multiple interpretations.
The claim fails to meet the requirements of 35 USC 112, paragraph (a) and (b) for the reasons set forth below:
Quality and clarity of disclosure (REPEATED): At present, the examiner cannot decipher portions of the claim as presented in the drawings. Several structures, elements and/or contours within are obscured by the poor quality of the disclosure (i.e. poor line quality, merged lines, missing and/or incomplete contours, etc.) and can therefore NOT be interpreted or examined. While applicant has converted the areas “identified by the examiner as including "incomplete contours" or "merged lines and unclear elements" are now shown with gray shading, indicating that they are no longer claimed as part of the design,” the annotation of portions of 1.2 provided by the examiner was an example that was not intended to be exhaustive, and was clearly stated as such, poor line quality and lack of clarity persists throughout the remainder of the drawings. Another example is provided from 1.2 below:
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849
1247
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The following is another example from 1.1:
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765
1895
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The following is another example from 1.5:
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559
577
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Applicant is advised that if the exact details and appearances cannot be derived from the original disclosure, clarification of these areas by way of simply improving the line quality may introduce new matter. It is suggested that any areas, elements or structures that may not be clear or derived from the original disclosure, be disclaimed in all figures in which they appear.
It should be noted that the figures provided above are just examples and not intended to be exhaustive. Due to the numerous occurrences throughout, not all instances have been directed to. Applicant is advised to carefully review and compare each view as the onus for providing a fully consistent and enabling drawing falls with the applicant.
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Inconsistency: The following are inconsistent among the figures (Applicant is advised to review each figure closely as all inconsistencies may not be included below):
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510
1301
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395
1343
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Unclear elements/structures (REPEATED): There are several elements and structures in Figs. 1.2 & 1.5 of which, their exact shape and appearance cannot be ascertained in the absence of corroborating views to fully enable the three-dimensional appearance of said elements/structures (e.g. one or more attributes such depth, curvature, angle, placement, etc. are unknown). Applicant is advised that although the elements may be shaded, shade lines that change direction or do not cross contour lines on adjacent surfaces indicate a change in plane and/or appearance that cannot be defined without additional views.
Applicant is cautioned that if the surface shape of an element/structure is not evident from the disclosure as filed, the addition of surface shading and/or additional perspective views of those elements/structures may fail to satisfy the written description requirement. (see 35 U.S.C. 132, 37 CFR 1.121).
The exact shape and appearance of the areas/elements directed to below do not appear to be evident from the original disclosure. Applicant may indicate that protection is not sought for those portions of the reproductions which are considered indefinite and nonenabling by amending the reproductions to color those portions or convert those portions to broken lines and by amending the specification to include a statement that the portions of the article shown in broken lines form no part of the claimed design or a statement that the portions of the article shown by coloring form no part of the claimed design provided such amendments do not introduce new matter (see 35 U.S.C. 132, 37 CFR 1.121). If applicant believes that said element(s) are in fact enabled by the present disclosure, applicant is encouraged to exhibit the relationship in their response.
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472
1587
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550
581
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Broken lines (REPEATED): Although applicant states in remarks “It is believed that the appearance of broken lines may have been due to the quality of the reproductions originally on file. In the replacement reproductions submitted herewith, there are no broken lines used to indicate unclaimed parts of the design,” the claim remains indefinite because the reproductions include broken lines, in figure(s) 1.1 and 1.2 (see annotations on Page 3), that is not described in the specification, and the scope of the claimed design cannot be determined.
If the broken lines identify matter for which protection is not sought, applicant may overcome this rejection by inserting a statement similar to the following into the specification immediately preceding the claim, provided such statement does not introduce new matter (see 35 U.S.C. 132):
-- The broken lines are for the purpose of illustrating portions of the article that form no part of the claimed design. –
In view of the fact that the drawing constitutes the entire visual disclosure of the claim, it is of utmost importance that the drawing is clear and complete, and that nothing regarding the design sought to be patented is left to conjecture.
Applicant is advised to carefully review and compare each view as the onus for providing a fully consistent and enabling drawing falls with the applicant.
To overcome this rejection, it is generally suggested that:
All elements and structures be shown consistently in proportion and appearance in view of the original disclosure as to provide a consistent, definite and enabling design
Applicant attempt to clarify or altogether disclaim the indefinite and non-enabled areas noted in the reproductions, without the addition of new matter. Applicant is reminded that all elements shown in the original disclosure must be shown in subsequent drawings by either solid or broken lines. Attempting to disclaim an entire area does not overcome the requirement to disclose all elements within.
Applicant is advised that in accordance with Hague Administrative Instruction Section 403,matter excluded from the claim may be indicated:
(a)(i) in the description referred to in Rule 7(5)(a) and/or;
(a)(ii) by means of dotted/broken lines, or coloring.
Per MPEP 2920.05(c), for clarity of the disclosure, Applicant is encouraged not to simply rely on a description to indicate matter shown in a reproduction for which protection is not sought, but rather to also identify the matter for which protection is not sought through the use of broken or dotted lines or coloring.
Applicant is reminded that if the examiner concludes that the amendment to the claimed subject matter is not supported [described] in an application as originally filed, this would result in a rejection of the claim on the ground of a lack of written description under 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph.
A response is required in reply to the Office action to avoid abandonment of the application.
Conclusion
The claim stands finally rejected for the reasons set forth above.
The references cited but not applied are considered cumulative art related to the subject matter of the claimed design.
THIS ACTION IS MADE FINAL AND CLOSES THE PROSECUTION OF THIS APPLICATION. See MPEP 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). Applicant’s reply under 37 CFR 1.113 to this action is limited to an appeal to the Patent Trial and Appeal Board, an amendment that places this claim in condition for allowance.
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.
Reply Reminder
Applicant is reminded that any reply to this Refusal must be signed either by a patent practitioner (i.e., a patent attorney or agent registered to practice before the United States Patent and Trademark Office) or by the applicant. If the applicant is a juristic entity, the reply must be signed by a patent practitioner. See 37 CFR 1.33(b).
Discussion of the Merits of the Application
All discussions between the applicant and the examiner regarding the merits of a pending application will be considered an interview and are to be made of record. See MPEP 713. The examiner will not discuss the merits of the application with applicant’s representative if the representative is not registered to practice before the USPTO. Appointment as applicant’s representative before the International Bureau pursuant to Rule 3 of the Common Regulations under the Hague Agreement does NOT entitle such representative to represent the applicant before the USPTO. Furthermore, an applicant that is a juristic entity must be represented by a patent attorney or agent registered to practice before the USPTO. Additional information regarding interviews is set forth below.
Interviews
An interview may only be conducted with an attorney or agent registered to practice before the USPTO (“registered practitioner”) or with a pro se applicant (an applicant who is the inventor and who is not represented by a registered practitioner).
The registered practitioner may either be of record or not of record. To become “of record”, a power of attorney (POA) in accordance with 37 CFR 1.32 must be filed in the application. Form PTO/AIA /80 “Power of Attorney to Prosecute Applications Before the USPTO’, available at https://www.uspto.gov/patent/forms/forms-patent-applications-filed-or-after-september-16-2012, may be used for this purpose. See MPEP 402.02(a) for further information. Interviews may also be conducted with a registered practitioner not of record provided the registered practitioner can show authorization to conduct an interview by completing, signing, and filing an “Applicant Initiated Interview Request Form” (PTOL-413A) (available at the USPTO web page indicated above). See MPEP 405. For acceptable ways to submit forms to the USPTO, see “When Responding to Official USPTO Correspondence” below.
If a pro se applicant or registered practitioner located outside of the United States wishes to communicate by telephone, it is suggested that such person email the examiner at cynthia.chin@uspto.gov to arrange a time and date for the telephone interview. Please include suggested days and times for the proposed call. When proposing a day and time for the interview, please take into account the examiner’s work schedule indicated in the last paragraph of this communication. The email should also be used to determine who will initiate the telephone call.
Email Communications
The merits of the application will not be discussed via email (or other electronic medium) unlessappropriate authorization for internet communication is filed in the application. Form PTO/SB/439 “Authorization for Internet Communications in a Patent Application or Request to Withdraw Authorization for Internet Communications” may be used to provide such authorization and is available at the USPTO web page indicated above. The authorization may not be sent by email to the USPTO. For acceptable ways to submit the authorization form to the USPTO, see “When Responding to Official USPTO Correspondence’ below. See MPEP 502.03 II for further information.
When Responding to Official USPTO Correspondence
When responding to an official correspondence issued by the USPTO, including refusals, Ex Parte Quayle, Notice of Allowances, or Notice of Abandonments, please note the following:
The USPTO transacts business in writing. Applicants may submit replies to Office actions only by:
Online via the USPTO's Electronic Filing System-Web (EFS-Web) (Registered eFilers only)https://www.uspto.gov/patents-application-process/applying-online/efs-web-guidance-and-resources
Mail: Commissioner for Patents, P.O. Box 1450, Alexandria, VA, 22313-1450
Facsimile to the USPTO's Official Fax Number (571-273-8300)
Hand-carry to USPTO's Alexandria, Virginia Customer Service Window
https://www.uspto.gov/patents-maintaining-patent/responding-office-actions
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CYNTHIA M CHIN whose telephone number is (571)272-6021. The examiner can normally be reached Monday – Friday 10-6 PM. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Susan Krakower can be reached on (571)272-4496. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
General questions regarding patent examining policy, assistance with filling out forms, or general information concerning rules, procedures and fees, should be directed to the Inventors Assistance Center (IAC). The IAC is staffed by former Supervisory Patent Examiners and experienced Primary Examiners who answer general questions concerning patent examining policy and procedure. Assistance is available at the IAC Monday - Friday. 8:30am - 5:00pm (EST) at (800) 786-9199.
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, visit: http://www.uspto.gov/patents/process/status/private_pair/index.jsp. 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.
/Cynthia M. Chin/Primary Examiner, Art Unit 2917