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 .
Applicant has provided an amended specification, received 26 May 2026, with figure descriptions for every figure in the drawings; the previous specification objection is overcome and hereby withdrawn.
Applicant has provided an argument in response to the rejection under 35 U.S.C. 103 over the Garden pellet torch on YouTube, dated 03 May 2021, in view of the four legs and end cap of the Vortex glass rocket stove, dated 05 May 2024. Applicant asserts that the Garden pellet torch differs from the claimed design to the extent that it is substantially different and that these differences are not taught by the Vortex glass rocket stove and are not de minimis. Applicant cites that the claimed design shows a support arm that cleanly meets the square pipe; shows an open space present at the juncture of the square pipe and cylindrical body; shows a shorter, wide opening on the axially extending portion; shows an L-shaped protrusion on the axially extending square portion; and shows a surface on the square portion having three vertical slits therein. The examiner finds the applicant’s arguments that these differences are not taught by the Vortex glass rocket stove and are not, in totality, de minimis persuasive. Therefore, the rejection under 35 U.S.C. 103 has been overcome and is hereby withdrawn.
Acknowledgement of Declaration under 37 CFR 1.130(a)
Applicant’s declaration under 37 CFR 1.130(a) received 26 May 2026 is acknowledged. Applicant’s declaration does not meet the following formal requirement:
“The declaration must include an acknowledgment by the declarant that willful false statements and the like are punishable by fine or imprisonment, or both (18 U.S.C. 1001) and may jeopardize the validity of the application or any patent issuing thereon. The declarant must set forth in the body of the declaration that all statements made of the declarant’s own knowledge are true and that all statements made on information and belief are believed to be true.” MPEP 717.01(c)(II), see also 37 CFR 1.68.
In view of the above, the rejection under 35 U.S.C. 102 has not been overcome and is repeated below.
Objections to the Reproductions
The reproductions are objected to because the amended drawings of Figures 3.2 and 3.6, received 26 May 2026, are line drawings. Figures 3.1, 3.3 – 3.5, and 3.7 of the same embodiment are photographs. It is impermissible to mix the reproductions using different mediums in the same design (embodiment), see MPEP 1503.02(V).
To overcome this objection, applicant may submit amended reproductions of the third embodiment, showing Figures 3.1 – 3.7 all in photographs, or all in line drawings. It is noted that applicant should be especially careful to avoid new matter if converting Figures 3.1 – 3.7 to line drawing, and it is also noted that changes to an understanding of Figure 3.1 – 3.7 may require restriction.
The drawings must consistently and completely depict the claimed design.
Correction of the drawing is required.
When preparing new or replacement drawings, be careful to avoid introducing new matter. New matter is prohibited by 35 U.S.C. 132 and 37 CFR 1.121(f).
Corrected drawing sheets are required in reply to the Office action to avoid abandonment of the application. 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.” 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.
Final Rejection under 35 USC § 102
Rejection repeated:
The claim is again and FINALLY 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 on the following page:
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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).
Conclusion
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.
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 Patent Center (Registered eFilers only)
https://www.uspto.gov/patents/apply/patent-center
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.
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.
/Rachel Wolfe/
Examiner, Art Unit 2926
/Richard Kearney/Supervisory Patent Examiner, Art Unit 2933
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