FINAL REFUSAL
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 .
Examiner Comment
The amendment received 07/14/26 has been acknowledged. Due to the corrections made to the present application, the specification objection has been overcome. Although the applicant states in the remarks received 07/14/26 that the replacement sheets are provided to address and overcome the refusal under 35 U.S.C. 112(a) and (b), there are no changes made in the replacement reproductions or specification to address the refusal under 35 U.S.C. 112(a) and (b) and therefore the refusal still stands.
Specification Objection
Descriptions of the figures are not required to be written in any particular format, however, they must describe the views of the drawing clearly and accurately (MPEP 1503.01(II)). The specification is objected to for the following:
The description of Figure 1.1 uses the language “Cosmetic brush”, in which is different and inconsistent with the title of the article “Bottle for Cosmetics”. Therefore, for accuracy, the applicant must amend the figure description by cancelling the language [[Cosmetic brush]] and substitute with the title of article of the claimed design --bottle for cosmetics--.
Final Refusal under 35 U.S.C. 112(a) and (b)
The claim is refused under 35 U.S.C. 112(a) and (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.
The claim is indefinite and non-enabling because the single front elevation view of the bottle in isolation from the cap portion of the bottle for cosmetics provided does not fully disclose the design for which protection is sought. The single front elevation view is considered indefinite and non-enabling because it does not distinguish the differences between the orientation and curvatures of planes, which may create a variety of different depths within the design. Specifically, Figure 1.9 depicts a small rectangular feature on each side of the base of the bottle’s neck where it connects to the bottle’s body, in which cannot be fully understood with the disclosure provided.
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Figure 1.9
Showing a three-dimensional article with a single two-dimensional drawing is insufficient in demonstrating the exact shape and depth of a design. “With articles which are unsymmetrical and which present different appearances from different points of view, one figure from a single point, however well executed, is not sufficient for complete disclosure,” Ex parte Salsbury, 38 USPQ 149 (ComrPats 1938).
Because of the inadequate disclosure, the claimed design is in fact subject to multiple interpretations, and one of ordinary skill in the art would not be able to understand how the present design gives form to a three-dimensional article nor make and use the design without the use of conjecture. This renders the claim indefinite and non-enabled.
To overcome this refusal, it is suggested that applicant submit new reproductions of the claimed design that show the design consistently and clearly addresses the non-enabled portion in question. If certain non-enabled portions of the design cannot be fully enabled without the introduction of new matter, applicant may remove from the claim the areas or portions of the design that are considered indefinite and non-enabling by converting them to broken line and amending the specification to indicate those portions form no part of the claimed design.
When preparing new or replacement reproductions in compliance with the requirement, be careful to avoid introducing new matter. New matter is prohibited by 35 U.S.C. 132 and 37 CFR 1.121(f).
Conclusion
The claim stands finally refused under 35 U.S.C 112(a) and (b).
Accordingly, THIS ACTION IS MADE FINAL. See MPEP 706.07(a). 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 date of this final action.
Contact
Any inquiry concerning this communication or earlier communications from the examiner should be directed to WOOSUK K SHIN whose telephone number is (703)756-1166. The examiner can normally be reached Mon-Fri, 8:30am-5pm.
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/W.K.S./Examiner, Art Unit 2923
/KEVIN K RUDZINSKI/Primary Examiner, Art Unit 2911
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