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
Foreign Priority
Acknowledgment is made of Applicant's claim for foreign priority based on United Kingdom Design Application Nos. GB6371369 and GB6371370, filed 06/12/2024. It is noted, however, that there are no corresponding certified documents in the file wrapper.
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). This should include 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 USC 255 and 37 CFR 1.323.
Election
In the paper received 12/04/2025, Applicant elects without traverse the design shown in Group I (Embodiment 1: Reproductions 1.1-1.7). Accordingly, the design shown in Group II (Embodiment 2: Reproductions 2.1-2.7) stands withdrawn, and the corresponding drawings and figure descriptions are canceled from further prosecution. 37 CFR 1.142(b).
Drawings
The reproductions are objected to as follows:
The disclosure should be amended to delete Group II (Reproductions 2.1-2.7) per Applicant’s 12/04/2025 election.
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 reproductions , 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:
Descriptions of the reproductions are not required to be written in a particular format; however, they should describe the views of the drawings clearly and accurately. MPEP 1503.01(II). The descriptions for non-elected 2.1-2.7 should be deleted per Applicant's 12/04/2025 election.
A feature description in the Specification reads:
“Each design refers to a dog muzzle as shown and described.”
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. Moreover, there is already a claim statement provided on a separate document.
Therefore, this statement adds little information to the disclosure that is not already evident. MPEP 1503.01, Description. As a result, this feature description may be interpreted in ways other than Applicant intends.
Applicant is suggested to delete this statement.
Claim Rejection - 35 USC § 102 (a)(1)
The claim is rejected under 35 USC § 102(a)(1) as being clearly anticipated by the "Muzzle-Movement: 'Harry' Style Muzzle" reference (Non-Patent Literature Citation No. U) 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.
Physical features may appear distorted in a photograph, due to foreshortening (the creation of depth), that otherwise may not be shown in a typical elevation/plan view. This is taken into consideration in the comparison shown below.
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304
871
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Claimed Design: 1.1, 1.2, 1.3
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166
508
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"Muzzle-M: Harry" Reference
For anticipation to be found, the two designs must be substantially the same. Gorham Co. v. White, 81 U.S. 511, 528 (1871). The ordinary observer test is the sole test for anticipation and requires consideration of the design as a whole. International Seaway Trading Corp. v. Walgreens Corp., 589 F.3d 1233, 1237-38, 1240, 93 USPQ2d 1001 (Fed. Cir. 2009); Egyptian Goddess Inc. v. Swisa Inc., 543 F.3d 665, 676, 88 USPQ2d 1658, 1666-67 (Fed. Cir. 2008).
“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 taking 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,’ 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)).
The standard for determining novelty under 35 USC § 102 is the “average observer”. In re Bartlett, 300 F. 2d 942, 133 USPQ 204 (CCPA 1962). This “average observer” has been described as having a less discerning eye. In re Nalbandian, 661 F. 2d 1214, 211 USPQ 782, footnote 2 at 784 (CCPA 1981). With that in mind, a minor variance between the claim and the "Muzzle-M: Harry" reference is noted. Although the "Muzzle-M: Harry" reference may incorporate colors that are not shown in the instant application, had this reference been shown in any alternate color it would still be viable in this argument; the overall appearance of the dog muzzle would remain substantially the same. In re Iknayan et al. 124 USPQ 507 (1960).
This established, such a minor difference would not affect the appearance of the design as a whole and the impression it makes to the eye of the average observer, as the core of an anticipation argument.
Under this standard, the appearance of the "Muzzle-M: Harry" reference is substantially the same as that of the claimed design. That is, the appearance of the claimed dog muzzle is deceptive to the extent that it would induce an ordinary observer to purchase it supposing it to be the "Muzzle-M: Harry" reference. Furthermore, the effective filing date of the claimed design is 12/12/2024; the published date of the "Muzzle-M: Harry" reference is 08/29/2023. Accordingly, the rejection under this statute is proper.
Applicant is advised that the published date of the "Muzzle-M: Harry" reference is more than 12 months before the effective filing date of the instant claim and more than 6 months before the date of their foreign priority claim (should the documents be provided). Unfortunately, this issue may make the claim defective.
Notwithstanding, Applicant may attempt to overcome this rejection by providing convincing evidence, in the form of an affidavit, that the disclosure was made before the effective filing date of the claimed invention, and 1) the disclosure was made by the inventor, a joint inventor, or by another who obtained the subject matter directly or indirectly from the inventor or joint inventor; or 2) before such disclosure, the subject matter disclosed had been publicly disclosed by the inventor or a joint inventor or another who obtained the subject matter disclosed directly or indirectly from the inventor or joint inventor.
In the future, Applicant is strongly advised to include in their original filing an affidavit (or declaration under 37 CFR 1.130) that may clarify on the record their relationship to any potentially conflicting prior art.
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 § 102 (a)(1).
The references cited but not applied are considered cumulative art related to the claimed design.
Any inquiry concerning this communication or earlier communications from Examiner may be directed to Primary Examiner Kendra Leslie Hamilton, at 571-272-7521. Examiner may typically be reached M-F, 10:00-5:30pm EST. If attempts to reach Examiner via telephone are unsuccessful, Examiner's supervisor, Ms. Shannon Morgan, may be reached at 571-272-7979. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of an application may be obtained from Patent Center. Status information for published applications may be obtained from Patent Center. Status information for unpublished applications is available through Patent Center to authorized users only. Should Applicant have questions about access to the USPTO patent electronic filing system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). Examiner interviews are available via a variety of formats; see MPEP § 713.01. To schedule an interview, Applicant is encouraged to use the USPTO Automated Interview Request (AIR) Form at uspto.gov/interviewpractice. Applicant may also contact a USPTO Customer Service Representative for assistance: 800-786-9199 (USA/CANADA), or 571-272-1000.
/Kendra Leslie Hamilton/
Primary Examiner, Art Unit 2915
01/02/2026