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 .
ACKNOWLEDGEMENTOF RESPONSE
The merits of the application have been reviewed in light of the applicant’s 6/30/25 response and have overcome the 4/1/25 specification objections, these specification objections are withdrawn. It is the examiner's position that the rejections of record under 35 U.S.C. 112(a) and (b) have not been overcome by the applicant's arguments and amendments and is hereby set forth again and made FINAL. The replacement drawing may not be retained in their present state and cannot be relied upon to overcome the rejection under 35 U.S.C. 112(a) and (b). Therefore, this rejection is maintained and repeated below. An action on the merits follows.
FINAL REJECTION(S) - 35 U.S.C. 112(a) and (b)
The claim is FINALLY 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 the inventor or joint inventor(s) regard as the invention.
The claim is indefinite and non-enabled because the 6/30/25 sole replacement reproduction has an exact three-dimensional form that cannot be understood without resorting to conjecture. The sole view shown is a two-dimensional fragment of information in the graphic description of the design for a three-dimensional article of manufacture.
With configuration-type designs the article of manufacture must be sufficiently disclosed so that there is a particular understanding of the design in the context of the article. A particular understanding of a design necessitates a particular understanding of the article which the design occupies. This is the enabling disclosure that is required by 35 USC 112(a).
In a design application, a clearly asserted claim scope supported by a non-enabled disclosure results in an indefinite claim.
The exact form cannot be determined. Is the entire “A” surface a flat plane or is the surface curved? Additionally, it is unclear if the “B” features are intended to be extruding or protruding features. Do the surfaces change upon different planes?
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In order to overcome this rejection, the claim must be definite and enabled. The application might be fatally defective because the 6/21/24 original reproduction and the 6/30/25 replacement reproduction are single views. For this reason, it is impossible to know the exact three-dimensional configuration of the claimed design. It might not be possible to identify any definite and enabled design claim without introducing new matter (35 U.S.C. 132, 37 CFR 1.121).
The long-standing requirement for a sufficient disclosure is well stated in the following quotes from Ex parte Salsbury, 38 USPQ 149 (ComrPats 1938).
The disclosure should leave no uncertainty as to what constitutes the patented design.
A design patent, therefore, should disclose the configuration and complete appearance of the article in which the design is embodied, so fully, clearly and with such certainty as to enable those skilled in the art to make the article without being forced to resort to conjecture.
With articles which are unsymmetrical and which present different appearances from different points of view, one figure from a single point, however well executed is not sufficient for complete disclosure.
Due to these ambiguities in the disclosure, the scope of protection sought by the claim cannot be determined and therefore the claim fails to particularly point out and distinctly claim the subject matter that the applicants regard as the invention and enable a designer of ordinary skill to reproduce the shape and appearance of the claimed design.
If corrected drawings are submitted in response to this Office action, they must be in compliance with 37 CFR 1.121(d). Each drawing sheet submitted after the filing dale of an application must be labeled in the top margin as either "Replacement Sheet" or "New Sheet" pursuant to 37 CFR 1.121(d).
REPLACEMENT REPRODUCTIONS
Any amended replacement drawing sheets should include all of the reproductions appearing on the immediate prior version of the sheet, even if only one reproduction is being amended. The reproduction or reproduction number of an amended drawing should not be labeled as “amended.” If corrected drawings are submitted in response to this Office action, they must be in compliance with 37 CFR 1.121(d). 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 a drawing reproduction is to be canceled, the appropriate reproduction must be removed from the replacement sheet, and where necessary, the remaining reproductions 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 reproductions. If all the reproductions 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 reproductions on that drawing sheet have been canceled must be presented in the amendment or remarks section that explains the change to the drawings.
If applicant chooses to amend the drawings and/or specification, the amendment must meet the written description requirement of 35 U.S.C. 112(a). It must be apparent that applicant was in possession of the amended design at the time of original filing. When preparing new or replacement drawings, avoid introducing new matter prohibited by 35 U.S.C. 132(a) and 37 CFR 1.121(f). If corrected drawings are submitted in response to the Office action, they must be in compliance with 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. Corrected drawing sheets are required in reply to the Office action to avoid abandonment of the application.
CONCLUSION
THIS ACTION IS MADE FINAL. The claim stands rejected under 35 U.S.C. 112(a) and (b), as set forth above. The applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). The prior art made of record and not relied upon is considered pertinent to the disclosure.
Applicant may attempt to overcome the rejection by amending the drawing disclosure to portray the claimed design as originally disclosed. Any changes made to the drawings must be supported by what was disclosed as part of the original disclosure. For instance, applicant may amend the drawings so that the features of the claimed design are consistent with one another among the views. However, it must be apparent in the amended version that applicant was in possession of the amended design as supported in the original design as filed.
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 mailing date of this final action.
CONTACT INFORMATION
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Kaitlan Walker whose telephone number is 571-272-1339. The examiner can normally be reached from 11:00am-7:00pm Eastern, Monday-Friday. 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, Dana Weiland, can be reached at 571-270-0253. The fax number for the organization where this application/proceeding is assigned is 571-273-8300. Information regarding the status of published/unpublished applications may be obtained from the Patent Center. Unpublished application information in the Patent Center is available to registered users.
To file and manage patent submissions in the Patent Center, visit: https://patentcenter.uspto.gov. For more information about the Patent Center, visit: https://www.uspto.gov/patents/apply/patent-center. For information about filing in DOCX format, visit: https://www.uspto.gov/patents/docx. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197. If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (CANADA) or 571-272-1000 (USA).
Please note that, at this time, the examiner is prohibited from initiating or returning international telephone calls. If applicant wishes to communicate by telephone, the examiner may be reached by email to arrange a time for applicant to initiate the telephone interview: Kaitlan.Walker@uspto.gov. The merits of the application may not be discussed via email unless an appropriate authorization for email communication is placed in the U.S. application file at the USPTO. Replies to office actions may not be sent via email. For those applications where applicant wishes to communicate with the examiner via Internet communications, e.g., email or video conferencing tools, the following is a sample authorization form which may be used by applicant:
"Recognizing that Internet communications are not secure, I hereby authorize the USPTO to communicate with the undersigned and practitioners in accordance with 37 CFR 1.33 and 37 CFR 1.34 concerning any subject matter of this application by video conferencing, instant messaging, or electronic mail. I understand that a copy of these communications will be made of record in the application file." Please see MPEP 502.03 II (Article 5) for more details.
DISCUSSION OF THE MERITS OF THE APPLICATION
In any application not prosecuted by the inventor, a Power of Attorney (PoA), filed with the USPTO in the specific case, is required whether or not attorney for the applicant has PoA authority in a foreign IP office. Only US registered Practitioners (not foreign attorneys) may represent applicants before the USPTO. Legal entities must be represented by US registered Practitioners. Examiner may not discuss the merits or specifics of a case without a proper PoA on file.
The PoA form submitted in the international phase is not effective for purposes of the US. The proper form is available at: https://www.uspto.gov/web/forms/sb0080.pdf.
When responding to an official correspondence issued by the USPTO, including refusals, 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:
USPTO's Patent Center (Registered e-Filers only) https://www.uspto.gov/patents/apply.
Mail: Commissioner for Patents, P.O. Box 1450, Alexandria, VA, 22313-1450
Mailing should be done sufficiently in advance to ensure the USPTO receipt prior to reply period expiration
Facsimile to the USPTO's Official Fax Number (571-273-8300) (Do Not Fax Formal Drawings)
Hand-carry to USPTO's Alexandria, Virginia Customer Service Window
For additional information regarding responding to office actions see: https://www.uspto.gov/patents-maintaining-patent/responding-office-actions.
RESPONDING TO OFFICIAL USPTO CORRESPONDENCE
The USPTO transacts business in writing. All replies must be signed in accordance with 37 CFR 1.33(b). Pursuant to 37 CFR 1.33(b)(3), a reply submitted on behalf of a juristic applicant must be signed by an attorney or agent registered to practice before the USPTO. Applicants may submit replies to Office actions only by:
USPTO's Patent Center (Registered e-Filers only) https://www.uspto.gov/patents/apply.
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 at: https://www.uspto.gov/patents/maintain/responding-office-actions.
/KW/
Examiner, Art Unit 2914
/CHRISTIAN P. MCLEAN/Supervisory Patent Examiner, Art Unit 2923