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 .
DETAILED ACTION
Specification Objection
Title
The Title is objected to for not being unnecessarily descriptive and repetitive. The title of the design must designate the particular article (37 CFR 1.153(a) and MPEP 1503.01).
Therefore, for clarity and proper form, the following title is suggested:
-- Chair --
The amended title must be shown consistently at each occurrence thereof throughout the application, original oath or declaration excepted.
Double Patenting
The claim is provisionally refused on the ground of nonstatutory double patenting as being unpatentable over co-pending Application No. 35/524550. As the figures show below, although the claims at issue are not identical, they are not patentably distinct from each other because of the slight changes in length and height in appearance between the claims. “The fact that some dimensions are changed in a different degree than others is not patentably significant. See In re Lamb, 128 USPQ 539 (CCPA 1961).”
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This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
It is well settled that it is unobviousness in the overall appearance of the claimed design, when compared with the prior art, rather than minute details or small variations in design as appears to be the case here, that constitutes the test of design patentability. See In re Frick, 275 F2d 741, 125 USPQ 191 (CCPA 1960) and In re Lamb, 286 F2d 610, 128 USPQ 539 (CCPA 1961).
The non-statutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A non-statutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on non-statutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP §§ 706.02(l)(1) - 706.02(l)(3) for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO Internet website contains terminal disclaimer forms that may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Conclusion
The claim stands refused under nonstatutory double patenting.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to QIAWEN WU WIECHERT whose telephone number is 703-756-1727. The examiner can normally be reached Mon-Fri, 8am-5pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jennifer Rempfer can be reached on 571-270-0248. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Q.W.W./
Examiner, Art Unit 2932
/MARY ANN CALABRESE/Primary Examiner, Art Unit 2931