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 Arguments
The declaration under 37 CFR 1.130(a) filed on 15 August 2024 is sufficient to overcome the rejection of the claim based on 35 U.S.C. § 102(a)(1) in view of puzzleYOU SMART SORTED.
However, applicant's amendments and arguments filed 15 August 2025, in regards to the previous rejection under 35 U.S.C. 112(a), have been considered and are found to be insufficient to overcome that rejection.
Additionally, after further review of the claim, a new rejection is applied to the claim under 35 U.S.C. § 102(a)(1). Please see the rejection below.
APPLICANT’S REMARKS:
“The rejection of the claim under 35 U.S.C. §112(a) as set forth at pages 5-6 of the Office Action has been considered. Applicant submits the drawings as submitted with this response includes the same relative dimensions as the dimensions of the original drawings.”
EXAMINER’S COMMENT:
The drawings submitted on 15 August 2025, have the same dimensions as the previously rejected drawings submitted on 23 October 2024, the deviations in the design within these drawings are not reasonably supported by the original disclosure. Please see the illustration below as well as the rejection under 35 U.S.C. 112(a).
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Claim Rejections - 35 USC § 112
The claim is rejected under 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph as failing to comply with the description requirement thereof since the new matter in the claimed design is not supported by the original disclosure. The original disclosure does not reasonably convey to a designer of ordinary skill in the art that applicant was in possession of the design now claimed at the time the application was filed. See In re Daniels, 144 F.3d 1452, 46 USPQ2d 1788 (Fed. Cir. 1998); In re Rasmussen, 650 F.2d 1212, 211 USPQ 323 (CCPA 1981).
Specifically, there is no support in the original disclosure for the deviations in the width and proportions in the overall design, as well as the alterations in the width and proportions of all of the internal design features. These numerous deviations in the design significantly alter the overall design illustrated in the original disclosure.
To overcome this rejection, the applicant may attempt to demonstrate (by means of argument or evidence) that the original disclosure establishes that he or she was in possession of the amended claim. Alternatively, to overcome this rejection, the applicant may revert to the original Reproductions submitted, with the changes addressing the objections/rejections above, without changing the overall design to an ordinary skilled designer. Since the Applicant has made numerous changes to the design in the replacement Reproductions, the later-claimed overall design is not reasonably supported by the original disclosure.
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Original Disclosure Reproduction 1.1 Amended Reproduction 1.1
Claim Rejections - 35 U.S.C. § 102(a)(1)
The claim is rejected under 35 U.S.C. 102(a)(1) as being anticipated by European Patent Registration No. 009053622-0001 (Citation “N” on the attached PTO-892, further referred to as EM009053622-0001) 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. EM009053622-0001 was published on 31 January 2023 which is before the effective filing date of the application on 10 October 2023.
The appearance of EM009053622-0001 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.
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Claimed Design EM009053622-0001
“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, 1313 (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, 589 F.3d at 1243 (citing Litton Sys., Inc. v. Whirlpool Corp., 728 F.2d 1423, 1444 (Fed. Cir. 1984)).
This rejection can be overcome by: · An affidavit or declaration of attribution may be submitted to except a disclosure as prior art because it was made by the inventor or a joint inventor, or the subject matter disclosed was obtained directly or indirectly from the inventor or a joint inventor. See MPEP 2152.06 (C) or (D).
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Discussion of the Merits of the Case:
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.
Telephonic or In Person Interviews
A telephonic or in person 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”, may be used for this purpose:
https://www.uspto.gov/patent/forms/forms-patent-applications-filed-or-after-september-16-2012
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 darcey.gottschalk@uspto.gov to arrange a time and date for the telephone interview. Please include proposed days and times for the proposed call. When proposing a day/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) unless appropriate 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
Conclusion
The claim stands rejected under 35 USC § 112(a)and(b).
The claim stands rejected under 35 U.S.C. § 102(a)(1).
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KATHERINE E. MORRIS whose telephone number is (571)272-9621. The examiner can normally be reached M-F, 9-5 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, Shawn Gingrich can be reached on (571)270-0218. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from
Patent Center. Unpublished application information in Patent Center is available to registered users. To
file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit
https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and
https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional
questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like
assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/K.E.M/
Examiner, Art Unit 2934
/SHAWN T GINGRICH/Supervisory Patent Examiner, Art Unit 2934