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 .
REFUSAL
General Information
This application discloses the following embodiments:
Embodiment 1 - Figs. 1.1-1.3
Embodiment 2 - Figs. 2.1-2.3
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).
Embodiment 1 claims a protective barrier.
Embodiment 2 claims a protective barrier.
The above-identified embodiments are considered by the examiner to present overall appearances that are visually similar. Furthermore, the differences between the appearances of the embodiments are considered minor and patentably indistinct, or are shown 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.
Drawings
The following formal matters are noted:
Reproductions 1.2 & 1.3 and 2.2 & 2.3 do not include a reference indicating from which portion the enlarged views were taken. 37 CFR 1.84(h). In order to show an enlarged detail view, a drawing must contain a broken line perimeter shape and a reference label number that corresponds to the reproduction number of the associated enlarged view.
The line weight is very heavy, hindering a clear understanding of the details and elements. MPEP Rule 11.13 (a)(c)
PNG
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Greyscale
Applicant is not required to correct the above-noted formal matters but may wish to do so for clarity and to place the application in better form.
Any corrected drawings submitted in response to this Office action must be in compliance with 37 CFR 1.121(d). The corrected drawings must not contain new matter. 35 USC 132 and 37 CFR 1.121.
Specification
The title “Protective Barrier (Part of-)" is objected to. The title must be directed to the article of manufacture to which the design is applied. A “Portion” or “Part” is not an article of manufacture. The title of the design identifies the article in which the design is embodied by the name generally known and used by the public and may contribute to defining the scope of the claim. See MPEP § 1504.04, subsection I.A. See Curver Luxembourg, SARL v. Home Expressions, Inc., 938 F.3d 1334, 1340, 2019 USPQ2d 341902 (Fed. Cir. 2019) ("[I]dentifying the article of manufacture serves to notify the public about the general scope of protection afforded by the design patent")
The title may be directed to the entire article embodying the design while the claimed design shown in full lines in the drawings may be directed to only a portion of the article. However, the title may not be directed to less than the claimed design shown in full lines in the drawings.
The Examiner recommends amending the title throughout the application, original oath or declaration excepted, to read: “Protective Barrier”.
If broken lines are included in the drawing, their use must be defined in the specification; i.e., environment, boundary, stitching, folds lines, etc. Dotted or broken lines may mean different things in different circumstances and it must be made entirely clear what they do mean. See In re Blum, 374 F.2d 904, 153 USPQ 177 (CCPA 1967).
The description of the dash-dot broken lines indicates “indeterminate length of the design”, which renders the claim indefinite. The dash-dot broken lines indicate a symbolic break in the article and should be described as such.
The evenly spaced broken lines have not been described in the Specification. The Examiner recommends amending both of the broken line statements to read: “The dash-dot broken lines indicate a symbolic break in the protective barrier, which forms no part of the claimed design. The area between the break lines forms no part of the claimed design. The evenly spaced broken lines depict environment that forms no part of the claimed design” or other similar statements.
Claim Rejection – 35 USC § 112
The claim is rejected under 35 USC § 112(a)&(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.
Specifically, the description indicates “indeterminate length”, which renders the claim indefinite. Additionally, the evenly spaced broken lines have not been described in the Specification, making the scope of the claim unclear.
Applicant may attempt to overcome this rejection by amending the Specification to describe the purpose of the evenly spaced broken lines and removing any reference to “indeterminate length”.
Any corrected reproductions submitted in response to this Office action must be in compliance with 37 CFR 1.121(d). The corrected reproductions must not contain new matter. 35 USC 132 and 37 CFR 1.121.
Refusal Reply Reminder
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 Applicant. If Applicant is a juristic entity, the reply must be signed by a patent practitioner. See 37 CFR 1.33(b).
Conclusion
The claimed design stands rejected under 35 USC § 112(a)&(b).
The references cited but not applied are considered cumulative art related to the claimed design.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LEANNE WAS-ENGLEHART whose telephone number is (571)272-7721. The examiner can normally be reached on Monday-Friday 8-5. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Lakiya Rogers can be reached on 571-270-7145. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/LEANNE WAS-ENGLEHART/
Primary Examiner, Art Unit 2934