The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Foreign Priority
Acknowledgment is made of applicant' s claim for foreign priority based on an application filed in the EM on 05/15/2024. However, Applicant must submit the original certified copy of the claimed application EM015060533-0001 as required per 37 CFR 1.55 in order to meet the requirements of 35 U.S.C. 119. In the case of a design application, the certified copy must be filed during the pendency of the application, unless filed with a petition under 37 CFR 1.55(g) together with the fee set forth in 37 CFR 1.17(g), that includes a showing of good and sufficient cause for the delay in filing the certified copy of the foreign application. If the certified copy of the foreign application is filed after the date the issue fee is paid, the patent will not include the priority claim unless corrected by a certificate of correction under 35 U.S.C. 255 and 37 CFR 1.323.
Claim Rejection - 35 USC §102
The claim is rejected under 35 U.S.C. §102(a)(1) as being anticipated by the SKÅGFÄ Wholesale KLYV children safe knife, as found on https://www.faire.com (Date earliest reviewed on https://www.faire.com Aug 30, 2022), 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 (Non-Patent Document U on Examiner’s Notice of References Cited, page 1).
PNG
media_image1.png
303
649
media_image1.png
Greyscale
The appearance of the SKÅGFÄ Wholesale KLYV children safe knife is substantially the same as that of the claimed design. The ordinary observer test is the sole test for anticipation. International Seaway Trading Corp. v. Walgreens Corp., 589 F.3d 1233, 1237-38, 1240, 93 USPQ2d 1001 (Fed. Cir. 2009) and MPEP §1504.02. The shape and appearance of the SKÅGFÄ Wholesale KLYV children safe knife is identical in all material respects to that of the claimed design. Hupp v. Siroflex of America Inc., 122 F.3d 1456, 43 USPQ2d 1887 (Fed. Cir. 1997). See callout "A" in sample below.
PNG
media_image2.png
504
547
media_image2.png
Greyscale
The standard for determining novelty under 35 U.S.C. 102 was set forth by the court in In re Bartlett, 300 F.2d 942, 133 USPQ 204 (CCPA 1962) to be that of the "average observer". The degree of difference from the SKÅGFÄ Wholesale KLYV children safe knife observer takes the new design for a different, and not a modified, already-existing design.
In deciding anticipation for design patents, determining what respects are material is done through the eyes of the "average observer" in the same way infringement is determined in Gorham Co. v. White.
“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, supra.
“The mandated overall comparison is a comparison considering 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, supra (citing Litton Sys., Inc. v. Whirlpool Corp., 728 F.2d 1423, 1444 (Fed. Cir. 1984)).
In conclusion, the claim is rejected under 35 U.S.C. §102(a)(1) as set forth above. The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Any inquiry concerning this communication or earlier communications from the Examiner should be directed to Ricky Pham, whose telephone number is (571)272-2321. The examiner can normally be reached on Monday through Thursday 7:00 am to 5:30 pm EST. 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.
Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/RICKY PHAM/ Primary Examiner, Art Unit 2913
August 19, 2025
Prosecution Insights