Notice of Pre-AIA or AIA Status
1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
2. Applicant’s response filed on 11/14/2024, including replacement drawings, is acknowledged. After review of the latest drawings, which include increased clarity of line work and amended scale/proportions of the claimed design throughout the disclosure, there are additional inconsistencies, some of which that appear to also have been present in the originally filed drawing disclosure from 07/28/2023. As such, the Ex Parte Quayle Action issued on 05/17/2024 is being withdrawn and an additional non-final rejection on the merits follows.
Foreign Priority
3. Acknowledgment is made of applicant’s claim for foreign priority based on an application filed in the European Union on November 15th, 2022. It is noted however that the priority documents on file appear to be Registration Documents, which means that there is no corresponding certified copy of European Union Application 015003309-0001 as required by 37 CFR 1.55. In the case of a design application, the certified copy must be filed during the pendency of the application, unless filed with a petition under 37 CFR 1.55(g) together with the fee set forth in 37 CFR 1.17(g), that includes a showing of good and sufficient cause for the delay in filing the certified copy of the foreign application. If the certified copy of the foreign application is filed after the date the issue fee is paid, the patent will not include the priority claim unless corrected by a certificate of correction under 35 U.S.C. 255 and 37 CFR 1.323.
A copy of the certified copy filed by applicant, including a copy filed via EFS Web, will not satisfy the requirement in 37 CFR 1.55(g) for a certified copy. See MPEP § 502.02, subsection V. "Application" in this connection is not considered to include formal papers such as a petition. A copy of the foreign patent as issued does not comply since the application as filed is required; however, a copy of the printed specification and drawing of the foreign patent is sufficient if the certification indicates that it corresponds to the application as file.
For assistance with retrieving the priority documents electronically, the applicant may contact the Patent Electronic Business Center (EBC) Customer Support Center at 1‐866‐217‐9197 (toll free) M‐F 6AM – Midnight (Eastern Time) or email PDX@uspto.gov.
Non-Final Rejection under 35 U.S.C. §112(a) and (b)
4. 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 non-enabling because some elements of the claimed design are unclear. Specifically, the drawings submitted on 11/14/2024 show the small circular element located on top of the article as inconsistent throughout the disclosure. Reproductions 1.1, 1.2, 1.3, 1.6, and 1.7 show this element to have multiple inset circular layers of consistent thickness along their circumferences that step back and recess into the article, however the quantity and form of the stepped layers is inconsistent throughout each drawing. For example, Reproduction 1.1 appears to show the outer-most layer having an angled side and an additional inner layer within the vertical outer wall of the element, whereas Reproduction 1.2 shows no angled sides or inner layer and Reproduction 1.4 shows the circular element to be a solid black mass having no steps and an inconsistent thickness along its circumference. There is no drawing that appears to show the element consistently. Additionally, this circular element has a central opening shown in reproduction 1.6, however this is inconsistent with reproductions 1.1, 1.3, and 1.4 which show no such central opening at the same location. See exemplary annotated portions of reproductions 1.1 through 1.4, 1.6, and 1.7 below.
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The originally filed disclosure on 07/28/2023 shows the small circular element to have stepped layers, a consistent thickness along its circumference, and central opening, however the circular element in this previous disclosure also appears to have an inconsistent quantity and form in the stepped layers throughout the disclosure. The examiner would like to point out that, based on the 07/28/2023 drawings, omitting the central opening entirely and converting the circular element on top to a solid black mass with irregular thickness along its circumference as demonstrated in the most recent Reproduction 1.4 would most assuredly introduce new matter.
Moreover, there is a thin band with consistent divisions which runs along either side of the front central stripe as well as the outside edge of the front face of the article in Reproductions 1.2 through 1.7, however this is inconsistent with Reproduction 1.1 which shows the band on the left side of the stripe merging with the bottom band below the central stripe and completely absent from the bottom left outside edge of the article. See exemplary annotated portions of Reproductions 1.3 and 1.1 below. The same inconsistency appears to be present in the originally filed drawings from 07/28/2023.
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Additionally, the inner side walls located behind the front face plate of the article have a thin band running along their outwardly facing side edges in reproductions 1.2, 1.5, and 1.7, however this is inconsistent with reproductions 1.1 and 1.6 which show no such band at the same location. While the band is only visible on the left side of the article in reproductions 1.2, 1.5, and 1.7, it is assumed that the band is also missing from reproduction 1.1 due to the apparent symmetry of the article throughout the disclosure. See exemplary annotated portions of reproductions 1.1, 1.6, and 1.7 below. The same inconsistency appears to be present in the originally filed drawings from 07/28/2023.
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The rear of the article features a generally diamond-shaped element which merges with a vertical strip element at its top and bottom that has tubing running along each side of its sides. There are multiple inconsistencies in this tubing across reproductions 1.2, 1.5, 1.6, and 1.7. For example, the exact number of subdivisions along the tubing is inconsistent across each of the four cited reproductions, creating instances where the tubing along the article’s right side is almost entirely free of subdivisions in reproduction 1.6 giving it the appearance of a continuous, smooth, flat band, however reproduction 1.5 shows many divisions that give the tube a more rounded appearance. There is also an additional oblong shaped element on the upper right side of the tubing in reproduction 1.5 that is not present at the same location in reproduction 1.6. The tubing along the left rear side of the diamond is also inconsistent, showing a varying number of subdivisions and a variance in form when comparing reproductions 1.2, 1.6, and 1.7. Also, the tubing on the right side appears substantially thinner than the tubing on the left side of the diamond. While it is understood that reproductions 1.5 and 1.6 are perspective views, and so there will be some variance in the appearance of the tubing’s thickness when comparing the right and left sides in a single view, the overall form of the object appears to be symmetrical, therefore the difference in widths of what would otherwise be a repeated detail appear inconsistent within the drawings. See exemplary annotated portions of Reproductions 1.2, 1.5, 1.6, and 1.7 below. The same inconsistency appears to be present in the originally filed drawings from 07/28/2023.
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The height, width, size and proportional relationships of the article’s various dimensions are inconsistent throughout the disclosure filed on 11/14/2024, making it impossible to determine the exact proportions of the claimed design. There does not appear to be any consistent scale used across the reproductions. Further still the latest drawings are also proportionally inconsistent with the drawings filed on 07/28/2023, adding to the lack of clarity in the intended proportions of the claimed design. All reproductions must be shown at a consistent size throughout the disclosure, otherwise the applicant risks confusing viewers about the exact proportions of the claimed design. See exemplary annotated reproductions below it being understood the issues are found in all drawings (MPEP § 1503.02).
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Finally, there is a small angled line visible through the gap where the rear and front portions of the hinged article overlap in Reproduction 1.5 that is unclear. This line is unclear because it cannot be determined if the line is the edge of an opening or the edge of a volumetric element and its relative location inside the article cannot be corroborated by any other view. See exemplary annotated portion of Reproduction 1.5 below. The same inconsistency appears to be present in the originally filed drawings from 07/28/2023.
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In the attempt to overcome this rejection, the applicant may show the elements noted above consistently throughout all the figures. Without a consistent disclosure, the details of the claimed design cannot be understood.
If any elements are noted above as unclear, the applicant may consider showing the unclear and indefinite elements in broken lines so long as the amendment meets the written description requirement of 35 USC 112.
Contact Information
5. Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAVID OBRIEN whose telephone number is (571)272-9121. The examiner can normally be reached Monday - Thursday 7AM-5PM ET.
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, Erich Herbermann can be reached at (571)272-6390. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DAVID OBRIEN/Examiner, Art Unit 2916