DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Election
In the paper received December 29, 2025, applicant elects without traverse the designs shown in Group III (Figs. 6.1-6.7 and Figs. 7.1-7.7). Accordingly, the designs shown in Groups I-II stand withdrawn from further prosecution. 37 CFR 1.142(b).
The applicant's request to cancel Figs. 1.1-5.7 and the corresponding figure descriptions in the response dated December 29, 2025 is acknowledged. Figs. 6.1-6.7 and 7.1-7.7 remain in the application and will be considered on the merits.
Claim Refusal- 35 U.S.C. 112(b)
The following is a quotation of 35 U.S.C. 112(b):
(B) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The claim is refused under 35 U.S.C. 112(b), as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or joint inventor regards as the invention. The claim is indefinite because the drawings include, in the figure(s), broken lines that are not described in the specification, and the scope of the claimed design cannot be determined.
When utilizing broken lines in a drawing, a broken line description which clearly describes the use of the broken lines must be included in the specification. See 37 CFR 1.152 and MPEP § 1503.02(III). Because broken lines can be used in design patent drawings for a number of reasons, the broken‐line description should expressly identify the purpose of the broken lines in addition to defining their relationship to the claimed design. See MPEP 1503.01(III).
If the broken lines represent environmental structure or portions of the article for which protection is not sought, applicant may overcome this refusal by inserting a statement similar to the following into the specification immediately preceding the claim provided the statement does not introduce new matter (see 35 U.S.C. 132):
--The broken lines in the drawings are for the purpose of illustrating portions of the Electronic Cigarette that form no part of the claimed design.--
A statement similar to the one above must be inserted in the specification preceding the claim.
A substitute specification to the claim is required pursuant to 37 CFR 1.125 and must be submitted with markings showing all the changes relative to the immediate prior version of the specification of record. The text of any added subject matter must be shown by underlining the added text. The text of any deleted matter must be shown by strike-through except that double brackets placed before and after the deleted characters may be used to show deletion of five or fewer consecutive characters. The text of any deleted subject matter must be shown by being placed within double brackets if strike-through cannot be easily perceived. An accompanying clean version (without markings) and a statement that the substitute specification contains no new matter must also be supplied. Numbering the paragraphs of the specification of record is not considered a change that must be shown.
Response to Arguments
Applicant states that Group III is directed to a partial design, wherein only the portions shown in solid lines form the claimed design, and the portions shown in broken lines form no part of the claimed design.
When using broken or dotted lines or coloring in a reproduction to indicate matter shown in a reproduction for which protection is not sought, applicants are encouraged to include an explanation of the purpose of the broken or dotted lines or coloring in the description. This may help to avoid uncertainty as to the scope of the claimed design. Similarly, applicants are encouraged not to simply rely on a description to indicate matter shown in a reproduction for which protection is not sought, but rather to also identify the matter for which protection is not sought through the use of broken or dotted lines or coloring. See MPEP 2920.05(c).
Therefore, assuming arguendo, applicant arguments cannot be substituted for an absence of a descriptive statement in the specification clearly describing the use of broken lines in the drawings. Accordingly, absent such statement, the scope of the claimed design is not clearly shown and described and therefore indefinite.
Discussion of the Merits of the Case:
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”, may be used for this purpose:
https://www.uspto.gov/patent/forms/forms-patent-applications-filed-or-after-september-16-2012
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 brett.melliar@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 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.
When Responding to Official USPTO Correspondence
When responding to an official correspondence issued by the USPTO, including refusals, Ex Parte Quayle, Notice of Allowances, or Notice of Abandonments, please note the following:
The USPTO transacts business in writing. Applicants may submit replies to Office actions only by:
• Online via the USPTO's Electronic Filing System-Web (EFS-Web) (Registered eFilers only)
o 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
Conclusion
The claim is refused under 35 U.S.C. 112(b) as set forth above.
The references are cited as pertinent prior art. Applicant may view and obtain copies of the cited references by visiting http://www.uspto.gov/patft/index.html and pressing the “Number Search” button.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to W. BRETT MELLIAR whose telephone number is (571) 272-6130. The examiner can normally be reached on Monday through Thursday from 7am to 5pm ET.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s AU Supervisor, Lakiya Rogers, can be reached at telephone number 571-270-7145. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
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.
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).
/WILLIAM B MELLIAR/Examiner, Art Unit 2934