DETAILED ACTION
The response filed on June 24, 2026, has been fully and carefully considered. The amendments to the drawings overcome the points of the refusal under 35 U.S.C. 112(a) and (b) presented in the nonfinal action dated March 26, 2026. However, the amendments to the drawings do not clearly and consistently show and describe the claimed design. Therefore, the refusal is maintained below as necessitated by amendment. Additionally, the amendments to the drawings fail to comply with the written description requirement, therefore a refusal under 35 U.S.C. 112(a) is presented below as necessitated by amendment.
The declaration under 37 C.F.R. 1.130(a) has been fully considered, but is not found persuasive that the refusals under 35 U.S.C. 102(a)(1) and 35 U.S.C. 103 should be withdrawn. See comments below. Therefore, the refusals under 35 U.S.C. 102(a)(1) and 35 U.S.C. 103 are presented again below.
Applicant’s arguments regarding the refusal for Nonstatutory Double Patenting has been fully considered but are not found persuasive. See comments below. Therefore, the refusal for Nonstatutory Double Patenting is presented again below.
Accordingly, this this action is made FINAL as necessitated by amendment.
Objections to the Drawings
The drawings are objected to for the following:
Figs. 1.5-1.7 show a broken line element, pointed to below, whereas Figs. 1.2-1.3 have no broken line element.
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This is understood as a minor inconsistency and therefore does not warrant a refusal under 35 U.S.C. 112(a) and (b). See MPEP 1503.02. Accordingly, applicant may overcome this objection by amending Figs. 1.2-1.3 to show the broken line element to be consistent with Figs. 1.5-1.7.
Figs. 1.1 and 1.4 show a circular broken line element, pointed to below, whereas Fig. 1.6 shows no circular broken line element.
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This is understood as a minor inconsistency and therefore does not warrant a refusal under 35 U.S.C. 112(a) and (b). See MPEP 1503.02. Accordingly, applicant may overcome this objection by amending Fig. 1.6 to show a circular broken line element to be consistent with Figs. 1.1 and 1.4.
Figs. 1.1 and 1.4 show a circular broken line element, pointed to below, whereas Fig. 1.7 shows no circular broken line element.
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This is understood as a minor inconsistency and therefore does not warrant a refusal under 35 U.S.C. 112(a) and (b). See MPEP 1503.02. Accordingly, applicant may overcome this objection by amending Fig. 1.7 to show a circular broken line element to be consistent with Figs. 1.1 and 1.4.
Figs. 1.3, 1.6 and 1.7 show the two clustered broken line elements on the left and the four clustered broken line elements on the right, whereas Fig. 1.5 shows the two clustered broken line elements on the right and the four clustered broken line elements on the left.
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This is understood as a minor inconsistency. See MPEP 1503.02. Accordingly, applicant may overcome this objection by amending Fig. 1.5 to show the two clustered broken line elements on the left and the four clustered broken line elements on the right to be consistent with Figs. 1.3, 1.6 and 1.7.
Corrected drawing sheets of the reproductions are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet of the reproductions should include all of the views appearing on the immediate prior version of the sheet, even if only one view is being amended. The view of an amended drawing should not be labeled as “amended”. If a drawing view is to be canceled, the appropriate view must be removed from the replacement sheet, and where necessary, the remaining views must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbered of the remaining views. Each drawing sheet of reproductions 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). Applicant is reminded that the numbering of the reproductions and legends must follow the Hague Administrative Instructions Section 405(a) consisting of two separate figures separated by a dot (e.g., 1.1, 1.2, 1.3, etc. for the first design, 2.1, 2.2, 2.3, etc. for the second design, and so on) (see 37 CFR 1.1026 and MPEP 2909.02). 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.
Care must be exercised to avoid introduction of anything which could be construed as new matter prohibited by 35 U.S.C. 132 and 37 C.F.R. 1.121 when preparing amended reproductions.
Claim Refusal - 35 U.S.C. § 112(a) and (b)
The claim is FINALLY 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 the inventor or a joint inventor regards as the invention.
The claim is indefinite and nonenabling because the claim is not consistently or clearly disclosed. Specifically:
Fig. 1.3 shows the outer circular element, pointed to below, in broken line and not claimed, whereas Fig. 1.6 shows the same outer circular element in claimed solid line.
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Fig. 1.3 shows the outer circular element, pointed to below, in broken line and not claimed, whereas Fig. 1.7 shows the same outer circular element in claimed solid line.
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Figs. 1.1 and 1.4 show the outer circular elements, pointed to below, in broken line and not claimed, whereas Fig. 1.6 shows the same outer circular elements in claimed solid line.
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Figs. 1.1 and 1.4 show the outer circular elements, pointed to below, in broken line and not claimed, whereas Fig. 1.7 shows the same outer circular elements in claimed solid line.
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Fig. 1.5 shows the outer circular element, pointed to below, in broken line and not claimed, whereas Fig. 1.6 shows the same outer circular element in claimed solid line.
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Fig. 1.5 shows the outer circular element, pointed to below, in broken line and not claimed, whereas Fig. 1.7 shows the same outer circular element in claimed solid line.
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Fig. 1.1 shows the edge lines, pointed to below, in broken line and not claimed, whereas Figs. 1.5 shows the same edge lines in claimed solid line.
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Fig. 1.2 shows the edge lines, pointed to below, in broken line and not claimed, whereas Figs. 1.1, 1.3, 1.5, 1.6 and 1.7 show the same edge lines in claimed solid line.
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Applicant may attempt to overcome this portion of the refusal by amending the drawings to clearly and consistently depict the scope of the claimed design.
Figs. 1.1, 1.2, 1.6 and 1.7 show the element, pointed to below, on the right of the body, whereas Fig. 1.5 shows the same element on the left of the body.
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Applicant may attempt to overcome this portion of the refusal by amending the drawings to clearly and consistently depict the claimed design.
Claim Refusal - 35 U.S.C. § 112(a)
The claim is FINALLY REFUSED under 35 U.S.C. 112(a) as failing to comply with the description requirement. The original disclosure does not reasonably convey to a designer of ordinary skill in the art that applicant was in possession of the design now claimed at the time the application was filed. See In re Daniels, 144 F.3d 1452, 46 USPQ2d 1788 (Fed. Cir. 1998); In re Rasmussen, 650 F.2d 1212, 211 USPQ 323 (CCPA 1981).
Specifically, there is no support in the original disclosure on June 20, 2025, for the following. The current showing of the claimed design has no antecedent basis in the original disclosure and therefore constitutes impermissible new matter.
The removal of the interior elements.
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The top element shown as flat and coplanar with the surrounding surfaces.
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The removal of the line elements pointed to below.
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The elements, pointed to below, with single line edges.
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The removal of the middle interior circle elements.
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The change in width of the surface, a portion of which is shown below.
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The element shown on the left of the body.
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The removal of the middle interior circle elements.
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The front surface to have flat and flush edges.
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The elements shown below with no additional line elements/portions.
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The element on the right side.
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The elements reversed.
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The removal of the line elements.
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The ridge elements shown with a single line thickness.
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The circular broken line elements.
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To overcome this rejection, applicant may either convincingly demonstrate that the original disclosure establishes that he or she was in possession of the amended claim or amend the drawings as originally shown.
The claim as refused above is indefinite because it is subject to more than one interpretation. As explained in the above refusal, at least one of the interpretations is the claimed design is the elements are not claimed and the front element is on the right of the body. Acting on this interpretation, the claim is also refused under 35 U.S.C. 102(a)(1) and for Nonstatutory Double Patenting, as follows. See MPEP 2143.03(I).
Claim Refusal - 35 U.S.C. § 102(a)(1)
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the refusal under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) 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 claim is FINALLY REFUSED under 35 U.S.C. 102(a)(1) as being anticipated by the “Ayrton Rivale” NPL reference by YannaKaymille dated September 06, 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 appearance of the “Ayrton Rivale” NPL reference is substantially the same as that of the claimed design. The ordinary observer test is the sole test for anticipation. See e.g., International Seaway Trading Corp. v. Walgreens Corp., 589 F.3d 1233, 1237-38, 1240, 93 USPQ2d 1001 (Fed. Cir. 2009) and MPEP § 1504.02.
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 F3d.1308 (Fed. Cir. 2001) citing Gorham Co. v. White, 81 U.S. 511, 528 (1871).
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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 at 1444).
Note, prior art rejections should ordinarily be confined strictly to the best available art. See MPEP 2120 I. Accordingly, the prior art rejections presented above use the oldest found publications of the eligible prior art. The other cited NPL references that pre-date this application may be used for future prior art rejections if necessary or applicable. The prior art made of record and not relied upon is considered pertinent to applicant’s disclosure. See MPEP 707.05.
Claim Refusal - 35 U.S.C. § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness refusals set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The claim is FINALLY REFUSED under 35 U.S.C. 103 as being unpatentable over the “Aryton’s The Veloce” NPL reference by @yannakaymille (dated September 13, 2024) in view of Kjaergaard (D738,555; published September 08, 2015).
Although the invention is not identically disclosed or described as set forth in 35 U.S.C. 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a designer having ordinary skill in the art to which the claimed invention pertains, the invention is not patentable.
The "Aryton's The Veloce" NPL reference has an overall similar visual appearance with design characteristics that are visually similar to those of the claimed design. The design shows a square base with front circular and rectangular elements, ridges on the right and left sides and rear connectors for cords. Attached to the base is a "u"-shaped structure. Attached and within the "u"-shaped structure is a rectangular housing with top, back and bottom ridges and a square front portion with a recessed round opening.
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The claim differs from the "Aryton's The Veloce" NPL reference in that the top and bottom surfaces are smooth and have no repeating circular elements.
Kjaergaard teaches a lighting fixture with top and bottom surfaces that are smooth with no repeating circular elements. Therefore, the removal of the repeating circular elements is considered de minimis and an obvious modification.
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For at least these reasons, it would have been obvious to a designer of ordinary skill not later than the effective filing date of the present claimed invention to modify the teaching of the "Aryton's The Veloce" NPL reference to remove the repeating circular elements and have a smooth top and bottom surface as taught by Kjaergaard since Kjaergaard demonstrates that the removal of the repeating circular elements is commonplace in the field of designing light fixtures and would therefore have been an obvious design choice. Accordingly, the claimed design would have no patentable distinction over the combination of references as discussed above.
Response to Arguments
Applicant’s arguments have been fully considered but are not found persuasive.
Applicant’s declaration does not make clear how the design went from the inventor to the publisher. Specifically, the declaration fails to first make clear how the applicant received the design, either directly or indirectly, from the inventor. The declaration then fails to make clear how the publisher received the design indirectly from the inventor. The statements “I have personal knowledge that these publications [the “Ayrton Rivale” and the “Ayrton’s The Veloce” by YannaKaymille and @yannkaymille] were published by a third party in a speech about our products.”, “the unaffiliated third party obtained these designs indirectly from Applicant…”, “the third party indirectly obtained the design disclosed in two Applicant owned US Design Patents Applications” and “both of the reference non-patent literature publications cited in the Office Action were derived from the Design Patent Applications owned by the applicant” are unclear and vague. Though the declaration states the publisher is an unaffiliated third party and indirectly derived the design from the applicant, or the applicant’s Design Patent Applications, the statements do not include any specific circumstances, which MPEP 2155.01 strictly cautions against: “an affidavit or declaration under 37 CFR 1.130(a) that is only a naked assertion of inventorship and that fails to provide any context, explanation or evidence to support that assertion is insufficient.” Moreover, the cited references are not patent application drawings, therefore it is unclear what is meant by stating the references were “derived from the Design Patent Applications owned by Applicant”. Also note, the examiner is forbidden by MPEP 1701 to express any opinion as to the validity or patentability of any claim in any U.S. patent.
Therefore, for at least these reasons, the declaration fails to establish the exact circumstances to establish how the publisher obtained the subject matter indirectly from the inventor(s). See MPEP 717. Accordingly, the rejection is maintained.
To be effective at overcoming the 35 USC 102(a)(1) rejection, the affidavit under 37 CFR 1.130(a) must be submitted which includes 1- an unequivocal statement that the inventor of the claimed design is also the inventor of the subject matter applied in the rejection, and which 2- states how (i.e. the chain of events and circumstances) the publisher (the one making the disclosure) of the prior art got the design directly or indirectly from the inventor. See MPEP 2155.
Nonstatutory Double Patenting
The nonstatutory double patenting refusal 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. See 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); and 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) may be used to overcome an actual or provisional refusal based on a nonstatutory double patenting ground provided the conflicting application or patent is shown to be commonly owned with this application. See 37 CFR 1.131(c). A registered attorney or agent of record may sign a terminal disclaimer.
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) refusal. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP refusal is provisional, the reply must be complete. MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application will determine what form 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.
The claim is provisionally refused on the grounds of nonstatutory double patenting of the claim of copending Application No. 35/525,484 in view of Kjaergaard (D738,555). At the time applicant made the design, it would have been obvious to a designer of ordinary skill in the art to show no repeating circular elements on the body of the light as demonstrated by Kjaergaard as a light body with no repeating circular elements is commonplace in the field of designing light fixtures.
This is a provisional nonstatutory double patenting refusal because the conflicting claims have not in fact been patented.
Response to Arguments
Applicant requests a stay of this provisional rejection and abeyance of any requirement to submit a Terminal Disclaimer until this Application or co-pending application No. 35/525,484 is granted.
A provisional rejection for Nonstatutory Double Patenting may not be held in abeyance. Only compliance with objections or requirements as to form not necessary for further consideration of the claims may be held in abeyance until allowable subject matter is indicated. An application must not be allowed unless the required compliant terminal disclaimer(s) is/are filed and/or the withdrawal of the nonstatutory double patenting rejection(s) is made of record by the examiner.
A complete response to a nonstatutory double patenting (NSDP) rejection is either a reply by applicant showing that the claims subject to the rejection are patentably distinct from the reference claims, or the filing of a terminal disclaimer in accordance with 37 CFR 1.321 in the pending application(s) with a reply to the Office action (see MPEP § 1490 for a discussion of terminal disclaimers). Such a response is required even when the nonstatutory double patenting rejection is provisional. MPEP § 804, subsection I.B.1.
Discussion of the Merits of the Case:
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”, may be used for this purpose:
https://www.uspto.gov/patent/forms/forms-patent-applications-filed-or-after-september-16-2012
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 brett.melliar@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 an official correspondence issued by the USPTO, including refusals, Ex Parte Quayle, Notice of Allowances, or Notice of Abandonments, please note the following:
The USPTO transacts business in writing. Applicants may submit replies to Office actions only by:
• Online via the USPTO's Electronic Filing System-Web (EFS-Web) (Registered eFilers only)
o https://www.uspto.gov/patents-application-process/applying-online/efs-web-guidance-and-resources
• 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
Conclusion
The claim stands FINALLY REJECTED under 35 U.S.C. 35 U.S.C. 112(a) and (b), 35 U.S.C. 112(a), 35 U.S.C. 102(a)(1), 35 U.S.C. 103 and for Nonstatutory Double Patenting.
Applicant's amendment necessitated the 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 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.
The prior art made of record and not relied upon is considered pertinent to applicant’s disclosure. The additionally cited references show the state of the art. Applicant may view and obtain copies of the cited references by visiting http://www.uspto.gov/patft/index.html and pressing the “Number Search” button.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to W. BRETT MELLIAR whose telephone number is (571)272-6130. The examiner can normally be reached on Monday through Thursday from 7am to 5pm ET.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s AU Supervisor, Lakiya Rogers, can be reached at telephone number 571-270-7145. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
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.
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).
/WILLIAM B MELLIAR/Examiner, Art Unit 2934
Prosecution Insights