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 .
Restriction Not Required
This application discloses the following embodiments:
Embodiment 1: Figures 1.1 – 1.7
Embodiment 2: Figures 2.1 – 2.8
Embodiment 3: Figures 3.1 – 3.7
Embodiment 4: Figures 4.1 – 4.8
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 identified embodiments are considered by the examiner to present overall appearances that are basically the same. Differences of color, of a straight angled leg (as seen in Embodiments 2, 3, and 4) or bent angled leg shape (as seen in Embodiment 1), of a straight, diagonal square pipe with bent support (as seen in Embodiments 1 and 4) or a bent, diagonal square pipe with straight support (as seen in Embodiments 2 and 3) are considered to be obvious in view of analogous prior art cited. Accordingly, they are deemed to be obvious variations and are being retained and examined in the same application. Any rejection of one embodiment over prior art will apply equally to all other embodiments. See Ex parte Appeal No. 315-40, 152 USPQ 71 (Bd. App. 1965). No argument asserting patentability based on the differences between the embodiments will be considered once the embodiments have been determined to comprise a single inventive concept. Failure of applicant to traverse this determination in reply to this action will be considered an admission of lack of patentable distinction between the above identified embodiments.
Objection to the Reproductions
The reproductions are objected to for an inconsistency in Figure 3.2, which appears to show an area of the background and which does not appear to be a portion of the article. The industrial design must be shown against a neutral plain background, and the reproductions should represent the industrial design alone, or the product in relation to which the industrial design is to be used, without any other object, accessory, person, or animal, see MPEP 2902.02. This issue is described in the annotated drawing below:
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The reproductions are also objected to for failing to fully disclose the industrial design because a portion of the article appears to be missing in Figure 3.6. See 37 CFR 1.1026 and Rule 9 of the Common Regulations Under the 1999 Act and the 1960 Act of the Hague Agreement. See the annotated drawing on the following page:
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Specification Objection
The specification is objected to under 37 CFR 1.1067 for failing to provide figure descriptions. The description should indicate the type of view shown in the corresponding figure, such as "front view," "perspective view," "top view," etc.
Rejection under 35 USC § 102
The claim is rejected under 35 U.S.C. 102(a)(1) as being anticipated by the Stainless Steel Fire Pipe, Pellet Torch by RB&G, seen on Amazon and listed by the seller as being first available 14 May 2024, two months before the filing of the instant application (cited by examiner, and hereinafter RB&G Pellet Torch), 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.
The appearance of the RB&G Pellet Torch 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) and MPEP § 1504.02.
A comparison of the claimed design and the RB&G Pellet Torch is shown below:
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“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, 81 U.S. 511, 528 (1871)).
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, 589 F.3d at 1243 (citing Litton Sys., Inc. v. Whirlpool Corp., 728 F.2d 1423, 1444 (Fed. Cir. 1984)).
A disclosure made one year or less before the effective filing date shall not be considered prior art if the disclosure was made by the original inventor(s), made by another who obtained the subject matter directly or indirectly from the inventor or a joint inventor, or was publicly disclosed by the inventor prior to the disclosure (35 U.S.C. 102(b)). To overcome the rejection over the RB&G Pellet Torch, the applicant may submit an appropriate affidavit, declaration of attribution, or declaration of prior public disclosure, to disqualify the disclosure as prior art (37 CFR 1.130).
Rejection under 35 USC § 103
The claim is rejected under 35 U.S.C. 103 as being unpatentable over the Garden pellet torch as disclosed on YouTube, published 03 May 2021, more than three years before the effective filing date of the instant application (cited by examiner, and hereinafter “Garden pellet torch”) in view of the four legs and cap on the end of the diagonal square pipe of the Vortex glass rocket stove as disclosed on YouTube, published 05 May 2024, more than one month before the filing of the instant application (cited by examiner, and hereinafter “Vortex glass rocket stove”).
Although the invention is not identically disclosed or described as set forth in 35 U.S.C. 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a designer having ordinary skill in the art to which the claimed invention pertains, the invention is not patentable.
The Garden pellet torch has an overall appearance with design characteristics that are visually similar to those of the claimed design. The design characteristics common to both the claimed design and the Garden pellet torch are noted below:
Overall same shape and proportions
Article of vertical cylindrical body, outward-angled legs, and diagonally positioned square pipe protruding from low point of cylindrical body
Nearly all of the upright cylindrical body is of a transparent material; lower portion of cylindrical body, legs, and protruding square pipe are of an opaque material
Upper end of cylindrical body is open-ended; body is hollow
Legs of four-sided, or square, shape
Angled bracket, or support “arm”, connecting from end of square pipe to ring around transparent cylindrical body
Square-sided portion horizontally protruding below diagonal square pipe portion
See a comparison of the claimed design and the Garden pellet torch on the following page:
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The claimed design differs from Garden pellet torch in that the claimed design shows four legs and shows a square-like cap on the end of the diagonal square pipe.
The Vortex glass rocket stove provides a teaching and rationale for this difference and shows four legs and a cap on the end of the diagonal square pipe, as described in the claimed design.
See a comparison of the claimed design and the Vortex glass rocket stove below:
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Any minor differences, such as showing, or not showing, a bend in the supportive arm, are considered de minimis and inconsequential to the overall appearance of the design.
It would have been obvious to a designer of ordinary skill not later than the effective filing date of the present claimed invention to modify the Garden pellet torch with the Vortex glass rocket stove because this is an obvious variation for the function of stability, and it is well-established that lights, heaters, and other analogous designs may incorporate differing numbers of supportive legs. Other functional details, such as a cap on the end of the square pipe, which is typical of a pellet stove-type design, would also be obvious to a designer skilled in the art.
Conclusion
Accordingly, the claim stands rejected, as set forth above.
The references are cited as cumulative art but are not applied other than as noted 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 tracey.bell2@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 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 Rachel Wolfe whose telephone number is 571-272-9327. The examiner can normally be reached Monday through Friday from 8:00 a.m. to 4:00 p.m. ET.
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, Richard Kearney can be reached on 571-272-8312. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Rachel Wolfe/
Examiner, Art Unit 2933