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 .
Non-Final Rejection under 35 U.S.C. 102(a)(1)
1. The claim is rejected under 35 U.S.C. 102(a)(1) as being anticipated by the scooter shown in Ninebot F3 D and F3 Pro D -English, Segway-Ninebot Europe, as shown in www.YouTube.com, January 7, 2025, 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.
2. The overall design of the scooter shown in Ninebot F3 D and F3 Pro D -English, 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).
3. 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 (Fed. Cir. 2001) citing Gorham Co. v. White, 81 U.S. 511, 528 (1871).
4. 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.
Non Final Rejection under 35 U.S.C. §112(a) and (b)
5. The claim is rejected 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.
6. The claim is indefinite and non-enabling because the claimed design shows some inconsistencies.
Figures 1.7, 1.5, 2.7, and 2.5 shows a small lip on the front mud guard, as well as two additional lines near the bottom of the front fork of the electric scooter, however, neither the lip or the two additional lines are not shown in Figure 1.1.
See exemplary annotated images below:
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Figure 2.5 shows a circle on the display panel, however that circle is not shown in Figs. 1.2, 1.5, 1.8, 2.2, or 2.8.
See exemplary annotated images below:
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Figure 1.6 shows that some of some cords appear to be transparent because you can see through parts of them, however they are not shown as transparent in any of the other drawings. See annotated image below:
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7. Without a consistent disclosure, the exact appearance of the claimed design cannot be understood. All the elements and details of the claimed design must be shown consistently throughout all the views.
8. If new drawings are prepared as a response to this rejection, care must be exercised to avoid introduction of anything which could be construed to be new matter prohibited by 35 U.S.C. 132 and 37 CFR 1.121(f).
9. 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.
NOTE: Applicant is reminded that the numbering of the reproductions and legends must follow the Hague Administrative Instructions Section 405(a), consisting of two separate figures separated by a dot (e.g., 1.1, 1.2, 1.3, etc. for the first design, 2.1, 2.2, 2.3, etc. for the second design, and so on). (See 37 CFR 1.1026 and MPEP 2909.02.) Thus the numbering convention used in the original submission should not be amended when responding to this rejection.
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).
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: [examiner email] 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 last paragraph 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.
Responding to Official USPTO Correspondence
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 Patent Center: https://patentcenter.uspto.gov
• Mail: Commissioner For Patents, P.O. Box 1450, Alexandria, VA, 22313-1450
Mailing should be done sufficiently in advance to ensure the USPTO receipt prior to reply period expiration
• Facsimile to the USPTO's Official Fax Number (571-273-8300) (Do Not Fax Formal Drawings)
• Hand-carry to USPTO's Alexandria, Virginia Customer Service Window
For additional information regarding responding to office actions see:
https://www.uspto.gov/patents/maintain/responding-office-actions
Note that correspondence received will appear in the Patent Center, which may be viewed by the applicant at: https://patentcenter.uspto.gov
10. Any inquiry concerning this communication or earlier communications from the examiner should be directed to Gregory McLemore whose telephone number is (571) 272-1622. The examiner can normally be reached Monday- Friday 8:30 am- 4:30 pm. If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, George Ulsh, can be reached on (571) 270-1433. 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.
/GREGORY G MCLEMORE/Examiner, Art Unit 2925