DETAILED ACTION
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 .
Restriction Election
Applicant's response filed December 4, 2025 and the election of Group I is acknowledged. Applicant's election does not indicate whether the election was made with or without traverse, but as no arguments to the restriction requirement were advanced, it is considered a response without traverse. See MPEP 818.01(a). Groups II-IV are withdrawn from further consideration by the examiner as being for the nonelected designs. 37 CFR 1.142(b)
Drawing Objections
The drawing disclosure is objected to because the drawings do not meet the requirements of 37 CFR 1.84(l) due to poor line quality. Throughout the disclosure, there are instances where the lines merge, creating areas of solid black that obscure the design. All drawings must be made by a process that will give satisfactory reproduction for patent printing. Every line, number and letter must be durable, clean, black (except for color drawings), sufficiently dense and dark, and uniformly thick and well-defined. The weight of all lines and letters must be heavy enough to permit adequate reproduction yet light enough so as to not bleed together. Correction is required to show crisp, clean, clear lines. Refer to the following annotated figures for examples of merged lines.
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Refer to “Replacement Drawings” below.
Specification Objections
The specification is objected to due to the following:
The title is objectionable because the title is inconsistent. In the Design listing, the title is stated as “Breathing mask for medical purpose” which is not consistent with the title of “Breathing Mask and fastening device” in the claim. To overcome this objection, the title must be amended throughout the application, original oath or declaration excepted, to consistently identify the name of the article in which the claimed design is embodied. The following title is suggested:
--Breathing Mask--
Claim Rejections
35 USC § 102(a)(1)
The claim is rejected under 35 U.S.C. 102(a)(1) as being anticipated by the mask shown in NPL reference “JULIA – More Room for dreams” posted by Lowenstein Medical International on Youtube at https://www.youtube.com/watch?v=IajlnYvx1e8 (Lowenstein) 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.
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The appearance of Lowenstein is substantially the same as that of the claimed design. See e.g., International Seaway Trading Corp. v. Walgreens Corp., 589 F.3d 1233, 1237-38, 1240, 93 USPQ2d 1001 (Fed. Cir. 2009) and MPEP § 1504.02.
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, 81 U.S. 511, 528 (1871)).
The comparison 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. Int'l Seaway, supra.
35 USC § 112(a) and (b)
The claim is rejected under 35 U.S.C. 112(a) and (b) or pre-AIA 35 U.S.C. 112, first and second paragraphs, 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 (or, for applications subject to pre-AIA 35 U.S.C. 112, the applicant) regards as the invention.
The claim is indefinite and non-enabling due to the unclear shape and appearance of the claimed design. Refer to the following:
The shape and appearance of the lower rear portion of the article are inconsistent and unclear. 1.1 shows the upper U-shaped element (a) connecting to the lower strap (b) with a rectangular element (c) that is independent of “a” and “b”. However, 1.3 and 1.4 show the U-shaped element (a) threaded through a portion of the lower strap (b) that projects from the top of the strap. Refer to the following annotated figures. Please note that 1.4 has been omitted as the issues identified in 1.3 are mirrored in 1.4.
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The shape and appearance of certain portions of the design cannot be understood due to inadequate visual disclosure. It is unclear if these portions are flat, rounded, or angled, and it cannot be determined if these portions are flush or recessed in relation to one another or the areas surrounding them. Further, the depth of any recessed portions is unknown. Refer to the following annotated figures where the portions that cannot be understood have been shaded in gray and/or circled.
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Additionally, some portions cannot be understood due to poor line quality. These portions are shown to be solid black in the figures and, similar to the areas outlined above, an exact shape and appearance cannot be determined due to the opacity of these portions. Refer to the following annotated figures.
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Because of the unclear shape and appearance, the claimed design is subject to multiple interpretations, and one of ordinary skill in the art would not be able to understand the design without the use of conjecture. This renders the claim indefinite and non-enabled.
To overcome this rejection, it is suggested that applicant submit new drawings of the claimed design that show the design clearly and consistently. If certain non-enabled portions of the claimed design cannot be fully enabled without the introduction of new matter, applicant may remove from the claim the areas or portions of the design that are considered indefinite and non-enabled by converting them to broken lines and amending the specification to indicate those portions form no part of the claimed design. A statement similar to the following may be used and should be added to the specification following the figure descriptions and preceding the claim (MPEP 1503.02, subsection III):
-- The broken lines depict portions of the (insert amended title) that form no part of the claimed design. --
Replacement Drawings
Corrected drawing sheets are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures 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 figures. If all the figures 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 figures on that drawing sheet have been canceled must be presented in the amendment or remarks section that explains the change to the drawings. 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 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.
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).
Conclusion
The claimed design is rejected under 35 U.S.C. § 112(a) and (b), as set forth above.
Reply Reminder
Applicant is reminded that any reply to this communication 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 the applicant. If the applicant is a juristic entity, the reply must be signed by a patent practitioner. See 37 CFR 1.33(b).
Responding to Official USPTO Correspondence
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Online via the USPTO's Patent Center (Registered eFilers only);
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
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Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LEE STARR whose telephone number is (571)272-9581. The examiner can normally be reached Mon-Fri, 8:30 AM - 4:00 PM.
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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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/L.D.S./Examiner, Art Unit 2919
/DANIEL J DOMINO/Primary Examiner, Art Unit 2919