DETAILED ACTION
Notice of 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 .
Remarks
The Applicant’s remarks and amendments to the specification filed on June 2, 2026 have been acknowledged. However, the declaration submitted by the applicant under 37 CFR 1.130 is not sufficient to overcome the rejection of record under 35 U.S.C. §102(a)(1) in view of the following:
The appearance of the evidence of the prior art reference cited in the Applicant’s 1.130 declaration of Amazon with a date of June 2, 2026, referred to in Applicant’s remarks is unable to be determined. The images in the copies of the evidence provided by Applicant are illegible, specifically, the Applicant’s Exhibit C: Seller Inventory, and the relationship of the prior art and inventor as stated in the declaration cannot be determined. An annotated example of the evidence is provided by the Examiner below for Applicant’s convenience.
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The Examiner finds the rejection under 35 U.S.C. §102(a)(1) is still deemed proper and is made FINAL.
Final Refusal under 35 U.S.C. §102(a)(1)
The claim is rejected under 35 U.S.C. §102(a)(1) as being clearly anticipated by the “NCYP Octagon Glass Terrarium”, available on “Amazon” since at least December 4, 2024, 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 shape and appearance of the “NCYP Octagon Glass Terrarium” design is identical in all material respects to that of the claimed design, Hupp v. Siroflex of America Inc., 122 F.3d 1456, 43 USPQ2d 1887 (Fed. Cir. 1997). For anticipation to be found, the two designs must be substantially the same. Gorham Co. v. White, 81 U.S. 511, 528 (1871). 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).
“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, supra.
“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, supra (citing Litton Sys., Inc. v. Whirlpool Corp., 728 F.2d 1423, 1444 (Fed. Cir. 1984)).
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Applicants may overcome this rejection by providing convincing evidence that the disclosure was made one year or less before the effective filing date of the claimed invention, and 1) the disclosure was made by the inventor, a joint inventor, or by another who obtained the subject matter directly or indirectly from the inventor or joint inventor; or 2) before such disclosure, the subject matter disclosed had been publicly disclosed by the inventor or a joint inventor or another who obtained the subject matter disclosed directly or indirectly from the inventor or joint inventor.
Conclusion
The claim stands finally rejected under 35 USC §102(a)(1).
The references not relied upon are cited as cumulative prior art.
Applicant’s amendment necessitated the new ground(s) of rejection presented in this Office action. 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 nonprovisional extension fee (37 CFR 1.17(a)) 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.
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 the applicant. If the applicant is a juristic entity, the reply must be signed by a patent practitioner. See 37 CFR 1.33(b).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NICOLE M LEECH whose telephone number is (571)272-1769. The examiner can normally be reached Monday-Friday, 8am-5pm. If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Sandra Snapp can be reached on (571)272-8364. 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.
Reply Reminder
Applicant is reminded that any reply to this communication 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 the applicant. If the applicant is a juristic entity, the reply must be signed by a patent practitioner. See 37 CFR 1.33(b).
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: Nicole.Leech@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.
Responding to Official USPTO Correspondence
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: https://patentcenter.uspto.gov
Mail: Commissioner For Patents, P.O. Box 1450, Alexandria, VA, 22313-1450
Mailing should be done sufficiently in advance to ensure the USPTO receipt prior to reply period expiration
Facsimile to the USPTO's Official Fax Number (571-273-8300) (Do Not Fax Formal Drawings)
Hand-carry to USPTO's Alexandria, Virginia Customer Service Window
For additional information regarding responding to office actions see:
https://www.uspto.gov/patents/maintain/responding-office-actions
Note that correspondence received will appear in the Patent Center, which may be viewed by the applicant at: https://patentcenter.uspto.gov
/N.L./Examiner, Art Unit 2914
/SANDRA SNAPP/Supervisory Patent Examiner, Art Unit 2914
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