Office Action
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejection under 35 U.S.C. §112(a) and (b).
The claim is rejected under 35 U.S.C. 112(a) and (b) or pre-AIA 35 U.S.C. 112, first and second paragraphs, 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 (or, for applications subject to pre-AIA 35 U.S.C. 112, the applicant) regards as the invention.
Section A
The claim is indefinite and nonenabling due to the lack of disclosure. The drawings do not contain enough visual information to determine the appearance of the claimed design.
The exact three dimensional shape of the claimed design cannot be understood from the drawings.
It is not clear if the irregular teardrop shaped elements on the front and rear of the applicator are recessed feature of flat indicia.
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If the two irregular teardrop shaped elemenst on the front and rear of the applicator possesses any recessed features, then the exact depth and perspective of these features are unclear.
The views of the claimed design are insufficient whereby to make and reproduce without resort to conjecture.
To overcome this portion of the rejection, the two irregular teardrop shaped elements should be reduced to uniform broken lines. For clarity and proper form, the following descriptive statement must be inserted immediately preceding the claim:
-- The broken lines in the drawing depicting portion of the Applicator for Lips Cosmetics are for illustrative purposes only and form no part of the claimed design. --
Due to the lack of disclosure, the appearance of the claimed design cannot be determined. Hence, the claim cannot be understood and is indefinite.
When preparing new drawings in compliance with the requirement therefor, care must be exercised to avoid introduction of anything which could be construed to be new matter prohibited by 35 U.S.C. 132 and 37 CFR 1.121.
The necessity for good drawings in a design patent application cannot be overemphasized. As the drawing constitutes the whole disclosure of the design, it is of utmost importance that it be so well executed both as to clarity of showing and completeness, that nothing regarding the design sought to be patented is left to conjecture. An insufficient drawing may be fatal to validity (35 U.S.C. 112, first paragraph). Moreover, an insufficient drawing may have a negative effect with respect to the effective filing date of a continuing application.
Special Note
Applicant is reminded that if new drawings are submitted for this application, then the drawings must be properly numbered according to Hague Administrative Instructions Section 405(a). See MPEP § 2909.02. Each view of the drawings must be labelled using two separate figures separated by a dot. (e.g., 1.1, 1.2, etc.).
Applicant is reminded that photographs or other graphic representations accompanying an international application filed on paper shall be either pasted or printed directly onto a separate sheet of A4 paper which is white and opaque. Also, where that application is filed on paper, a margin of at least 5 millimeters should be left around the representation of each industrial design. (See Hague Administrative Instructions Section 401(c)(d), MPEP 2909.02)
Conclusion
The claimed design is patentable over the references cited. However, a final determination of patentability will be made upon resolution of the above rejection.
Accordingly, the claim is rejected under 35 U.S.C. 112(a) and (b) for indefiniteness of disclosure.
Examiner’s Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ZENIA IBANEZ BENNETT whose telephone number is (571)272-2466. The examiner can normally be reached on Monday-Friday 7:30 AM - 4 PM C.S.T.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Messina Smith can be reached on (571) 272-3137. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Please note, the Examiner cannot return calls international calls outside the U.S. You may attempt to reach the Examiner via email at zenia.bennett@uspto.gov. Emails are not considered an official response to the Office and are not considered confidential.
The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ZENIA I BENNETT/Primary Examiner, Art Unit 2963
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