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 .
DETAILED ACTION - REFUSAL
Foreign Priority
This application incorporates by reference Korean Design/Application No. KR30-2023-0025279. All the material from the Korean Design/Application No. KR30-2023-0025279 that is essential to the claimed design is included in this application. Amendments of the claim may be based on the content of the incorporated material. However, with or without a specific amendment, it is understood that any material in the Korean Design/Application No. KR30-2023-0025279 that is not present in this application forms no part of the claimed design.
Specification Objection
The specification is objected to for the following reason:
The title of the design being claimed must be descriptive, accurate, clear and correspond to the name of the article in which the design is embodied or applied. (35 USC 171, 37 CFR 1.153, and MPEP 1503.01(I))
In this case, the title, “Monitor for medical purpose”, is misdescriptive because the phrase “medical purpose” is directed to functional or structural features that are not disclosed and that are of no concern in design patents (Where the claim is for a “design substantially as shown and described,” and the description contains references to the purpose and use of certain devices: Held, that function is thereby carried into the claim, which therefore should not be allowed. J. D. Diffenderfer 1872 C.D. 154 (1872)
The title may be amended throughout the application, original oath or declaration excepted, to read: “Monitor”.
Claim Rejection - 35 USC § 103
The claim is rejected under 35 U.S.C. § 103 as being unpatentable over Kyongtae Han et. al’s “MONITOR FOR MEDICAL PURPOSES”, U.S. Design Patent D934,245 (26 October 2021) in view of Sungjoo Kim et. al’s “MONITOR DATA PROCESSING”, U.S. Design Patent D827,644 (4 September 2018). Although the invention is not identically disclosed or described as set forth in 35 U.S.C. 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a designer having ordinary skill in the art to which the claimed invention pertains, the invention is not patentable.
The Han patent has design characteristics that are visually similar to the claimed design. The Han patent features a computer monitor with a bezel that is slightly thicker on the bottom, a small square feature protruding from the bottom right side of the bezel over the screen, and a rear face with a rectangular raised portion and a narrow oval vent at the top, all of which is the same as the claimed design.
The only difference between the claimed design and the Han patent is the slightly angled stand with cord management and a base with a circular feature. The Kim patent teaches the stand’s shape.
Han patent
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Kim patent
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Claimed design
It would have been obvious to a designer of ordinary skill not later than the effective filing date of the present claimed invention to combine the overall appearance of the Han patent and the stand’s shape from the Kim patent. The claimed design would have no patentable distinction over the examiner’s combination of references. The difference in the height of the raised rear rectangle and the presence of an additional narrow oval feature is not significant enough to warrant a patent for the overall appearance of the claimed design over the prior art. See In re Lapworth, 172 USPQ 129 (CCPA 1971) and In re Lamb, 286 F.2d 610, 128 USPQ 539 (1961).
Case law has held that a designer skilled in the art is charged with knowledge of the related art; therefore, the combination of old elements, herein, would have been well within the level of ordinary skill. See In re Antle, 444 F.2d 1168,170 USPQ 285 (CCPA 1971) and In re Nalbandian, 661 F.2d 1214, 211 USPQ 782 (CCPA 1981).
Obviousness, like anticipation, requires courts to consider the perspective of the ordinary observer. Comparing the claimed design with the examiner’s combination of references takes 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,” (Litton, 728 F.2d at 1444), so too minor differences cannot prevent a finding of anticipation. (International Seaway Trading Corp. v. Walgreens Corp., 93 USPQ2d 1001 (Fed. Cir. 2009.)
It is well settled that it is unobviousness in the overall appearance of the claimed design, when compared with the prior art, rather than minute details or small variations in design as appears to be the case here, that constitutes the test of design patentability. See In re Frick, 275 F2d 741, 125 USPQ 191 (CCPA 1960) and In re Lamb, 286 F2d 610, 128 USPQ 539 (CCPA 1961).
The design of an article consists of the visual characteristics or aspect displayed by the article. It is the appearance presented by the article that creates an impression through the eye upon the mind of the observer. Since a design is manifested in appearance, the subject matter of a design patent may relate to the configuration or shape of an article, to the surface ornamentation on an article, or to both.
Accordingly, the aesthetic features of the claimed design are found to be obvious over the Han patent in view of the Kim patent.
Conclusion
Accordingly, the claim stands rejected under 35 U.S.C. § 103, as set forth above. The references cited but not applied are considered cumulative art related to the claimed design.
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/A.D./Examiner, Art Unit 2921
/LEANNE WAS-ENGLEHART/Primary Examiner, Art Unit 2918