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 .
REFUSAL
Detailed Office Action
Reproductions
The following formal matter is noted:
The broken lines that depict unclaimed subject matter should not appear more prominent than the solid object lines that depict the claimed design. MPEP § 1503.02.III. The broken lines depicting the unclaimed nodules on the teether teat often blend and merge. Broken lines in the drawings should be uniform in size, length and weight in order to contrast with the solid line disclosure of claimed subject matter. (See example below.)
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Reproduction 1.6 with arrows noting blending or merging broken lines.
All reproductions must be made by a process which will give them satisfactory reproduction characteristics.
Applicant is not required to correct the above-noted formal matter but may wish to do so to place the application in better form.
Any corrected reproductions submitted in response to this Office action must be compliant with 37 CFR 1.121(d).
An amended replacement reproduction sheet should include all the reproductions appearing on the immediate prior version of the sheet, even if only one reproduction is amended. The reproduction (or reproduction number) of an amended view should not be labeled as amended. If a reproduction is canceled, that reproduction must be removed from the replacement sheet and the remaining reproductions and their related descriptions must be renumbered, as necessary.
Additional replacement sheets may be necessary to show the renumbering of the remaining reproductions. If all the reproductions on a sheet are canceled, a replacement sheet is not required. A marked-up copy of the sheet (labeled as "Annotated Sheet") including an annotation showing that all the reproductions on that sheet have been canceled must be presented in the amendment or remarks section that explains the change to the reproductions.
Each 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 the changes are not accepted by Examiner, Applicant will be notified and informed of any required corrective action in the next Office action.
When preparing new or replacement drawings, be careful to avoid introducing new matter. New matter is prohibited by 35 U.S.C. 132 and 37 CFR 1.121(f).
Specification
The specification is objected to as follows:
A feature description following the 1.7 description reads:
“The light therapy device is characterized by a rectangular box-shaped; body presenting an array of lenses for transmission of light on a front side as shown by reproduction nos. 1.1 and 1.2; where in a portion of a front side of the body bearing the array of lenses is raised above the larger front side as shown in reproduction nos. 1.4, 1.5, 1.6, and 1.7; having a foldable stand in a recess resting flush with an outer aspect of the box shape as shown in reproduction nos. 1.1, 1.3, and 1.7, e.g.: and wherein a back of the box meets a top side and a bottom side of the body at an angle different than ninety degrees.”
Per Hague Rule 7(5)(a); A.I. Section 405(c), such a feature description is acceptable if it relates to the characteristic visual features of the design. The feature description may delve into functional features but may not have a technical basis.
The phrasing "foldable stand" describes a change in the claims appearance that is not shown in the reproductions, as the claimed design is only shown in one configuration. Applicant is recommended to amend this phrasing. No description, other than a reference to the reproduction, is ordinarily required in a non-provisional international design application. 37 CFR 1.1024 and 1.1067, MPEP 2920.04(a)II.
Consequently, portions of the above-mentioned statement add no new information to the disclosure and contain functional and structural explanations of the invention that have no bearing on the ornamental appearance. In re Carletti et al., 328 F.2d 1020, 140 USPQ 653 (CCPA 1964); Jones v. Progress Industries, Inc., 119 USPQ 92 (D.R.I. 1958). The statement is helpful in an overall comprehension of the claim; however, amendments for clarity are suggested below for brevity, clarity, accuracy, to maintain a single claim and for proper form. Accordingly, Examiner suggests:
-- The light therapy device is characterized by a rectangular box-shaped; body presenting an array of lenses for transmission of light on a front side as shown by reproduction nos. 1.1 and 1.2; where in a portion of a front side of the body bearing the array of lenses is raised above the larger front side as shown in reproduction nos. 1.4, 1.5, 1.6, and 1.7.--
The meaning and purpose of the broken lines in a drawing must be made clear in the specification. If broken lines are included in a drawing, their use must be defined in the specification; e.g., environment, boundaries, stitching, fold lines, etc…dotted or broken lines may mean different things in different circumstances and...it must be made entirely clear what they do mean. In re Blum, 374 F.2d 904, 153 USPQ 177 (CCPA 1967). A required amendment to the broken line statement is held in abeyance pending a response to the rejection below.
Claim Rejection – 35 USC § 112
The claim is rejected under 35 USC § 112(a)&(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 a joint inventor regards as the invention.
Specifically, the claim is indefinite and non-enabled because:
There are broken lines shown in the drawings, however there is no description of what the broken lines show or if they are claimed. MPEP § 1503.02, subsection III.
The two most common uses of broken lines are to disclose the environment related to the claimed design and to define the bounds of the claim. Structure that is not part of the claimed design, but is considered necessary to show the environment in which the design is associated, may be represented in the drawing by broken lines. This includes any portion of an article in which the design is embodied, or applied to, that is not considered part of the claimed design. See In re Zahn, 617 F.2d 261, 204 USPQ 988 (CCPA 1980). Unclaimed subject matter may be shown in broken lines for the purpose of illustrating the environment in which the article embodying the design is used. Unclaimed subject matter must be described as forming no part of the claimed design or of a specified embodiment thereof.
A statement similar to the following should be used to describe the broken lines on the drawing (MPEP § 1503.02, subsection III). For clarity and proper form, Applicant may amend their current broken line statement in the specification.
Examiner suggests:
-- The equal-length broken lines in the drawings depict portions of the light therapy device that form no part of the claimed design. --
The exact appearance and three-dimensional configuration of the elements shown below may be interpreted in more than one way. One skilled in the art of making a light therapy device would have to resort to conjecture to make and use the elements. (See below.)
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Reproduction 1.3
The precise depth and dimension of the elements shaded in solid gray cannot be determined.
The surfaces indicated may be recessed at differing depths, may be at varying curves or may be at multiple angles.
The peripheral edge of the indefinite portion is labeled with “A”.
Of note, there are solid lines within the indefinite portions. Solid lines are not permitted in unclaimed areas. Contour lines are also not permitted in unclaimed areas.
To attempt to resolve this issue, Applicant may reduce “A” to equal-length broken line.
Additionally, Applicant may reduce all solid object lines “B” within the solid gray-shaded area to equal-length broken line.
These features may also be shown in the other views. Applicant is suggested to review the entirety of the drawing disclosure for consistency as they execute any drawing amendments.
Applicant may attempt to overcome this rejection by showing the claimed design - completely and consistently. In doing, Applicant may amend the drawings and/or specification in response to this Office action. Applicant is cautioned that any drawing amendments must show the claimed design, and its corresponding details, completely and consistently throughout all of the views. If Applicant chooses to remove from the claim any elements or portions of the design that are considered indefinite and non-enabling, Applicant must reduce them to legible, properly spaced broken lines. Lastly, Applicant is encouraged to compare the information in the specification to ensure agreement with the drawing disclosure.
The aforementioned solution suggests reducing indefinite and non-enabled portions (indicated above) to equal-length broken lines. These new broken lines would depict those surfaces and elements as unclaimed portions of the light therapy device. Note that if broken lines are used to depict unclaimed portions of the design, then the meaning and purpose of these broken lines must be properly described in the specification, immediately preceding the claim statement.
Any corrected reproductions submitted in response to this Office action must be compliant with 37 CFR 1.121(d). The corrected reproductions must not contain new matter. 35 USC 132 and 37 CFR 1.121.
Refusal 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 Applicant. If Applicant is a juristic entity, the reply must be signed by a patent practitioner. See 37 CFR 1.33(b).
Conclusion
The claimed design stands rejected under 35 USC § 112(a)&(b).
Any references cited but not applied are considered cumulative art related to the claimed design.
Any inquiry concerning this communication or earlier communications from the examiner should be
directed to Michael Hoffman whose telephone number is (571) 272-9850. The examiner can normally be
reached Monday-Friday 8:30am-5:30pm EST.
If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Holly Thurman, can be reached at (571) 272-8068. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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1000.
/M. H./
Patent Examiner, Art Unit 2919
/Kendra Leslie Hamilton/Primary Examiner, Art Unit 2915 06/20/2025