DETAILED ACTION
Notice of Pre-AIA or AIA Status
1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
2. All the amendments have been carefully considered and entered. No new matter has been introduced. The applicant filed a Declaration under Rule 130(a) on 12/23/2025, however, the Declaration does not provide sufficient convincing evidence clearly stating how the publisher obtained the reference from the inventor. The applicant’s response did not overcome the rejection under 35 U.S.C. 102(a)(1), therefore, it is presented and made FINAL.
REJECTION UNDER 102(A)(1)
3. The claim is finally rejected under 35 U.S.C. 102(a)(1) as being anticipated by cheeyou_lash kiss rod shown in weblink < https://www.instagram.com/p/Cva_YjTt9yQ/> posted on 08/01/2023 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 design.
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cheeyou_lash kiss rod
The shape and appearance of the cheeyou_lash kiss rod posted on Instagram 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.
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). 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 F3d.1308 (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. MPEP 706.02(b)(1)(D).
4. The content of the affidavit and/or declaration under 1.130(a) submitted by the applicant was not sufficient to support the 35 USC 102(b)(1)(a) or 35 USC 102(b)(1)(b) exception because it lacks an explanation of the chain of events of how the publisher of the reference obtained the design from the inventor. Moreover, such affidavit or declaration should include that the design disclosed by the reference is the work of the inventor and an explanation of how the publisher of the reference obtained the design from the inventor.
CONCLUSION
5. The claim stands finally rejected under 35 U.S.C. 102(a)(1) as set forth above.
6. THIS ACTION IS MADE FINAL. 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 mailing date of this final action.
CONTACT INFORMATION
7. Any inquiry concerning this communication or earlier communications from the examiner should be directed to XAVIER MARTI-SANTOS whose telephone number is (571)272-9005. The examiner can normally be reached Monday - Friday, 8:30 a.m. - 5:00 p.m..
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.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, George Bugg can be reached at (571) 272-2998. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/XAVIER MARTI-SANTOS/
Primary Examiner
Art Unit 2911