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 .
OFFICE ACTION
General Information
Acknowledgement is made of applicant’s 08/04/2025 response. Applicant’s response has overcome the rejection under 35 USC 112(a) and (b), however, the response and argument was found non-persuasive and therefore the rejection under 35 U.S.C. 103 is set forth again and made final.
The claim is now finally rejected as follows.
Applicant’s Arguments
Applicant introduces “the real photos” for comparison. Examiner notes that they can only respond to comparisons between the patent application as filed and the prior art cited. In a design patent application, the subject matter which is claimed is the design embodied in or applied to an article of manufacture (or portion thereof) and not the article itself. Ex parte Cady, 1916 C.D. 62, 232 O.G. 621 (Comm’r Pat. 1916). (MPEP 1502.01, Distinction Between Design and Utility Patents)
Applicant also presents material, function, and portions of the article not shown in the filed patent (such as the strap.) Examiner notes that they can only speak to the drawings as filed, and that the material of which an article is made and its function are not considered in a design patent. In general terms, a "utility patent" protects the way an article is used and works (35 U.S.C. 101 ), while a "design patent" protects the way an article looks (35 U.S.C. 171 ). The ornamental appearance for an article includes its shape/configuration or surface ornamentation applied to the article, or both. Therefore, any portion of the arguments discussing these elements has not been considered. (MPEP 1502, Definition of a Design)
Examiner finds applicant’s arguments that the overall appearance of Samsung is different than the claim, as the points in their argument involve material, function, and portions of the article not disclosed in the claim. Further, applicant has compared the MJVV design to the claimed design: the MJVV reference is used only to teach the inclusion of the two sets of tabs on the right and left sides and a side channel encircling the body of the article when applied to the Samsung reference. The structure, shape, other parts, straps, design and additional elements stressed by applicant are not relevant as a teaching reference. Therefore, the applicant’s argument is found non-persuasive, and the rejection under 35 U.S.C. 103 is made again and made final.
Claim Rejection - 35 U.S.C. 103
The claim is finally rejected under 35 U.S.C. 103 for being unpatentable over Samsung Smart Tag 2 Bracelet for kids (Samsung) in view of MJVV 4G GPS Smart Watch For Kids (MJVV).
Although the invention is not identically disclosed or described as set forth 35 U.S.C. 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a designer having ordinary skill in the art to which said subject matter pertains, the invention is not patentable.
Samsung shows a wearable tracker having design characteristics which are basically the same as those of the claimed design, in that they consist of an ovular shaped ‘watch’ body with an ovular indented track on the flat top face of the article, and flat bottom. (See illustrations.)
The claimed design differs from Samsung in that it shows two sets of tabs on the on the right and lefts sides of the article where the body connects to a band, and side channel encircling the body of the article
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MJVV shows a wearable tracker with two sets of tabs on the on the right and lefts sides of the article where the body connects to a band, and side channel encircling the body of the article.
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It would have been obvious to a designer of ordinary skill in the art at the time the invention was made to have modified Samsung by adding the side tabs and channel encircling the body of the article, because such a modification is no more than a simple substitution of one known design element for another. Moreover, such substitution of one known design element for another known design element in the same field would have been within the skill of an ordinarily skilled designer.
Any difference is not significant enough to warrant a patent for the overall appearance of the claimed design over the prior art. (In re Lapworth 172 USPQ 129; In re Lamb 128 USPQ 539)
Conclusion
The claim stands finally rejected under 35 U.S.C. 103.
The references are cited as pertinent prior art. Applicant may view and obtain copies of the cited references by visiting <http://www.uspto.gov/patft/index.html> and pressing the “Patent Number Search” button.
THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
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.
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/A.M.S./
Examiner, Art Unit 2922
/BARBARA FOX/ Supervisory Patent Examiner, Art Unit 2936