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 .
Election/Acknowledgement
Election of Group I was made without traverse per response dated December 19, 2025. Group II is withdrawn from further consideration by the Examiner, 37 CFR 1.142(b), as being for a non-elected design.
Examiner’s Comment Regarding
Restriction Requirement
The Examiner submits that the restriction requirement has been reconsidered. Specifically, after a review of Applicant’s election, the Examiner has determined that Embodiment 3 (originally divided into Group I in the restriction requirement of 10/29/2025) should be divided into Group II. See the following new restriction requirement. Any divisional or continuation applications must be filed in accordance with the restriction requirements below, and not the restriction requirement of 10/29/2025.
Restriction/Election Requirement
This application discloses the following embodiments:
Embodiment 1: Reproductions 1.1-1.4
Embodiment 2: Reproductions 2.1-2.4
Embodiment 3: Reproductions 3.1-3.4
Embodiment 4: Reproductions 4.1-4.4
Embodiment 5: Reproductions 5.1-5.4
Embodiment 6: Reproductions 6.1-6.4
Embodiment 7: Reproductions 7.1-7.4
Embodiment 8: Reproductions 8.1-8.4
Multiple embodiments of a single inventive concept may be included in the same design application only if they are patentably indistinct. See In re Rubinfield, 270 F.2d 391, 123 USPQ 210 (CCPA 1959). Embodiments that are patentably distinct from one another do not constitute a single inventive concept and thus may not be included in the same design application. See In re Platner, 155 USPQ 222 (Comm'r Pat. 1967).
The above disclosed embodiments divide into the following patentably distinct groups of designs:
Group I: Embodiments 1, 2, 5, 7, 8
Group II: Embodiments 3, 4, 6
The embodiments disclosed within each group have overall appearances that are visually similar. Furthermore, the differences between them are considered minor and patentably indistinct, or are shown to be obvious in view analogous prior art cited. Therefore, they are considered by the Examiner to be obvious variations of one another within the group. These embodiments thus comprise a single inventive concept and are grouped together. However, the varying claim scopes shown in the designs create differences that patentably distinguish each group from the others.
Because of the differences identified, the embodiments of each Group are considered to either have overall appearances that are not visually similar, or if they are visually similar, the differences are not minor and patentably indistinct or are not shown to be obvious in view of analogous prior art.
Restriction is required under 35 U.S.C. 121 to one of the patentably distinct groups of designs.
In accordance with the principles of compact prosecution, the Examiner has proceeded with the examination of Group I, based on Applicant’s reply on 12/19/2025. Accordingly, Group II is withdrawn from further consideration by the Examiner, 37 CFR 1.142(b), as being for a nonelected design. See objections and claim refusals below.
Should applicant traverse this requirement on the grounds that the groups are not patentably distinct, applicant should present evidence or identify such evidence now of record showing the groups to be obvious variations of one another. No argument asserting patentability based on the differences between the groups will be considered once the groups have been determined to comprise a single inventive concept.
Objection to the Reproductions
The amended reproductions received on 12/19/2025 are objected to because they are not of a quality permitting all the details of the industrial design to be clearly distinguished. See 37 CFR 1.1026. The lines are pixelated and fuzzy, and have resulted in stippling in many areas, both inside and outside of the claimed design. As a result the lines are also not suitable for adequate reproduction.
The enlarged examples below are representative of the poor line quality present in all of the reproductions.
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The amended reproductions received on 12/19/2025 are further objected to because the reproductions contain inconsistently scaled drawing labels. See 37 CFR 1.1026. The labels appear to be stretched along with the drawings. See also claim refusal below. The encircled areas shown in the examples below are representative of the inconsistent drawing labels.
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Reproductions 5.1-5.4, 7.2 and 8.1-8.4 are further objected to because the reproductions contain arbitrary broken lines. See arrows in the followings diagrams.
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New drawings are required that show adequate line quality that correct the above deficiencies.
Objections to the Descriptions
Title
The title is objectionable because it includes brackets and appears to be directed to two different articles of manufacture. Brackets in a title would not print on an issued U.S. patent. The title of a design being claimed must correspond to the name of the article in which the design is embodied or applied to. See MPEP § 1503.01 and 37 CFR 1.1067.
Furthermore, the title of a design being claimed must correspond to the name of the article in which the design is embodied or applied to. See MPEP § 2920.04 and 37 CFR 1.1025 or 37 CFR 1.1067. More than one claim is neither required nor permitted (37 CFR 1.1025). Multiple titles are used throughout the application. Specifically, the title used in the specification, the Claim statement, and the WIPO International Registration Publication Data is inconsistent. Therefore, for clarity and to ensure the scope of the claim is clear, the title should be amended throughout the application, original oath or declaration excepted. Any of the following are suggested:
-- Pouch Packaging --
-- Pouch --
-- Packaging --
Descriptive Statements
Statements following the description for Reproduction 8.4 are objected to because they include impermissible and unnecessary language about the appearance of the claimed design.
The descriptive statement included in the specification is impermissible because it describes the functionality of the design. See MPEP § 1503.01, subsection II. The specification of a non-provisional international design application is not permitted to include statements describing matters that are directed to the function of the design. Attention is directed to the fact that design patent applications are concerned solely with the ornamental appearance of an article of manufacture. The functional and/or structural features stressed by applicant in the papers are of no concern in design cases, and are neither permitted nor required. Function and structure fall under the realm of utility patent applications. Therefore, the following statement is impermissible and must be canceled from the specification:
[[The product is used for storing and displaying food products, in particular, confectionery products;]]
The descriptive statement included in the specification is unnecessary because it includes extraneous language. Any description of the design in the specification, other than a brief description of the drawing, is generally not necessary, since as a general rule, the illustration in the drawing views is its own best description. Therefore, the following statements are not useful in assisting to understand the claimed design and must be canceled from the specification (Ex parte Spiegel 268 O.G., 741(CD 1919)):
[[the design comprises a broadly flat package of flexible material having seams extending along the length on opposite sides; a sealable flap extends transversely across the front surface of the package; the images show a plan view from above, a side view, an end view, and an isometric 3D view;]]
The break line (jagged/zig-zag) description is objected to because there are no discernible break lines shown on the drawings. Therefore, the following statement must be canceled from the specification:
[[the dot-dash lines with a jagged/zig-zag feature shown in the reproductions for designs 3, 5 and 8 indicate the indeterminate length of the designs.]]
Claim Refusal – 35 U.S.C. 112(b)
The claim is refused for failing to particularly point out and distinctly claim the invention as required in 35 U.S.C. 112(b). The claim is indefinite because the drawings include broken lines, which are not described in the specification. Thus, the scope of the claimed design cannot be determined.
Applicant must clarify the relationship of the broken line subject matter to the solid line of the claim in accordance with the requirements set forth in MPEP § 1503.02(III). Broken lines are most commonly used for two purposes: 1) to disclose the environment related to the claimed design, or 2) to define the bounds of the claim (MPEP 1503.02 (III)).
The term environment includes portions of the design and environmental structure. While portions are descriptive of actual parts of the article of manufacture (designated by the title of the design), environmental structure is descriptive of subject matter beyond the article embodying the design.
Broken lines used as boundaries define unshaded regions and are normally understood to represent claim limitations.
Since broken lines may mean different things in different circumstances, it must be made clear in each design case what they mean, else the claim is bad for indefiniteness.
It appears that the broken lines represent portions of the article. Therefore, Applicant may overcome this refusal by inserting a statement similar to the following into the specification immediately preceding the claim, provided such statement does not introduce new matter (see 35 U.S.C. 132):
-- The broken lines illustrate portions of the {NEW TITLE} and form no part of the claimed design --
Claim Refusal - 35 USC 112(a)
The claim is refused under 35 U.S.C. 112(a), as failing to comply with the written description requirement. The original disclosure does not reasonably convey to a designer of ordinary skill in the art that applicant was in possession of the design now claimed at the time the application was filed. See In re Daniels, 144 F.3d 1452, 46 USPQ2d 1788 (Fed. Cir. 1998); In re Rasmussen, 650 F.2d 1212, 211 USPQ 323 (CCPA 1981). The amended reproductions received on 12/19/2025 show a distorted appearance of the design in each view. Specifically, the reproductions have been stretched in the Y-axis. This creates a new design that was not described in the original disclosure. An ordinary designer would not recognize, nor predict, upon reviewing the complete original disclosure, that the later-claimed design might be formed by changing the proportions of the pouch packaging, particularly stretching the design in the Y-axis.
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Claim Refusal – 35 USC 112(a) and (b)
The claim is refused under 35 U.S.C. 112(a) and (b), 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 applicant regards as the invention.
The claim is indefinite and non-enabling because the precise appearance of the claimed design cannot be determined because of the following reasons:
the three-dimensional appearance of the pouch packaging is not clearly disclosed. Specifically, the right and bottom drawings are pixelated and show areas in black, which may be the result of converging lines. This renders the claim illegible, particularly in Reproductions 1.2, 1.3, 2.2, 2.3, 5.2, 5.3, 7.2, 7.3, 8.2 and 8.3. See the following examples.
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the three-dimensional appearance of the pouch packaging is not consistently disclosed. Specifically, there is no correlation or alignment between the front, right and bottom views, particularly due to inconsistent scaling of the reproductions. This is exacerbated by the confusing descriptions of the views as oriented. Specifically, as diagrammed below, the bottom view (1.3) is shown to the side of the front view (1.1), and the right view (1.2) is shown below the front view (1.1). See 37 CFR 1.1026 and Rule 9 of the Common Regulations Under the 1999 Act and the 1960 Act of the Hague Agreement.
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the three-dimensional appearance of the pouch packaging is not consistently disclosed. Specifically, there is solid line subject matter shown on the bottom end of the pouch packaging in the front and perspective views. However, the bottom view shows no corresponding lines. See encircled areas and arrows in the following diagram of Reproductions 1.1, 1.3 and 1.4, exemplary of all of the design numbers.
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the three-dimensional appearance of the pouch packaging is not clearly disclosed. Specifically, the form of the pouch packaging cannot be ascertained from the four views disclosing each design. See arrows in the following diagrams representative of all of the Reproductions.
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As a result, the claimed design is in fact subject to multiple interpretations, and one of ordinary skill in the art would not be able to reproduce the design without conjecture. This renders the claim indefinite and non-enabled.
Conclusion
Accordingly, the claim stands refused under 35 U.S.C. § 112(b), 35 U.S.C. § 112(a), and 35 U.S.C. § 112(a) and (b), as set forth above.
Notes on Correspondence
Discussion of the Merits of the Application
All discussions between the applicant and the examiner regarding the merits of a pending
application will be considered an interview and are to be made of record. See MPEP 713. The examiner will not discuss the merits of the application with applicant’s representative if the representative is not registered to practice before the USPTO. Appointment as applicant’s representative before the International Bureau pursuant to Rule 3 of the Common Regulations under the Hague Agreement does NOT entitle such representative to represent the applicant before the USPTO. Furthermore, an applicant that is a juristic entity must be represented by a patent attorney or agent registered to practice before the USPTO. Additional information regarding interviews is set forth below.
Telephonic or in person interviews
A telephonic or in person interview may only be conducted with an attorney or agent registered to practice before the USPTO (“registered practitioner”) or with a pro se applicant (an applicant who is the inventor and who is not represented by a registered practitioner).
The registered practitioner may either be of record or not of record. To become “of record”, a
power of attorney (POA) in accordance with 37 CFR 1.32 must be filed in the application. Form
PTO/AIA /80 “Power of Attorney to Prosecute Applications Before the USPTO”, available at
https://www.uspto.gov/patent/forms/forms-patent-applications-filed-or-after-september- 16-2012, may be used for this purpose. See MPEP 402.02(a) for further information. Interviews may also be conducted with a registered practitioner not of record provided the registered practitioner can show authorization to conduct an interview by completing, signing and filing an “Applicant Initiated Interview Request Form” (PTOL-413A) (available at the USPTO web page indicated above). See MPEP 405. For acceptable ways to submit forms to the USPTO, see “When Responding to Official USPTO Correspondence” below.
If a pro se applicant or registered practitioner located outside of the United States wishes to
communicate by telephone, it is suggested that such person email the examiner at william.falloway@uspto.gov to arrange a time and date for the telephone interview. Please include proposed days and times for the proposed call. When proposing a day/time for the interview, please take into account the examiner’s work schedule indicated in the contact information section of this communication. The email should also be used to determine who will initiate the telephone call.
Email Communications
The merits of the application will not be discussed via email (or other electronic medium) unless
appropriate authorization for internet communication is filed in the application. Form PTO/SB/439 “Authorization for Internet Communications in a Patent Application or Request to Withdraw Authorization for Internet Communications” may be used to provide such authorization and is available at the USPTO web page indicated above. The authorization may not be sent by email to the USPTO. For acceptable ways to submit the authorization form to the USPTO, see “When Responding to Official USPTO Correspondence” below. See MPEP 502.03 II for further information.
When Responding to Official USPTO Correspondence
When responding to official correspondence issued by the USPTO, including a notification of
refusal, please note the following:
The USPTO transacts business in writing. All replies must be signed in accordance with 37 CFR
1.33(b). Pursuant to 37 CFR 1.33(b)(3), a reply submitted on behalf of a juristic applicant must be signed by an attorney or agent registered to practice before the USPTO. Applicants may submit replies to Office actions only by:
Online via the USPTO's Electronic Filing System-Web (EFS-Web) (Registered eFilers only): https://www.uspto.gov/patents-application-process/applying-online/efs-web-guidance-and-resources
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: https://www.uspto.gov/patents-maintaining-patent/responding-office-actions
Contact Information
Any inquiry concerning this communication or earlier communications from the Examiner should be directed to Teddy Falloway whose telephone number is (571)270-0207. The Examiner can normally be reached on Monday - Friday, 9:00 AM to 3:00 PM EST.
If attempts to reach the Examiner by telephone are unsuccessful, the Examiner’s supervisor, Wendy Arminio, can be reached at (571) 270-0221. 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 the 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.
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 the applicant. If the applicant is a juristic entity, the reply must be signed by a patent practitioner. See 37 CFR 1.33(b).
Additionally, renumbering of the drawing figures in any elected Group is neither required nor permitted. For ease of comparison with the International Registration, and for compliance with 37 CFR 1.1026 and Section 405 of the Administrative Instructions, the numbering of the drawing figures included in the elected Group must not be changed. Upon election, applicant is requested to direct cancellation of all drawing figures and corresponding description from the nonelected Group(s).
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.
/W. A. Teddy Falloway/Primary Examiner, Art Unit 2923