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 .
Obvious Double Patenting
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. 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 rejection 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 USPTO internet Web site contains terminal disclaimer forms which may be used. Please visit http://www.uspto.gov/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 http://www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
The claim is rejected under the judicially created doctrine of the obviousness-type double patenting of the claim in applicant's prior U. S. Patent No. D1,045,619. Although the designs are not identical, they are not patentably distinct from each other because varying the texts and its style arrangements on the front and/or rear and top surface(s) of the packaging is considered a minor modification.
This is a provisional obviousness-type double patenting rejection because the conflicting 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 F.2d 741, 125 USPQ 191 (CCPA 1960) and In re Lamb, 286 F.2d 610, 128 USPQ 539 (CCPA 1961).
Conclusion
The references cited but not applied are considered cumulative art representative of the subject matter of the claimed design.
The claimed design is rejected for the reasons set forth above.
Contact Information
Any inquiry concerning this communication or earlier communications from the Examiner should be directed to Teddy Falloway whose telephone number is (571)270-0207. The Examiner can normally be reached on Monday - Friday, 9:00 AM to 3:00 PM EST.
If attempts to reach the Examiner by telephone are unsuccessful, the Examiner's supervisor, Wendy Arminio, can be reached at (571) 270-0221. The fax phone number for the organization where this application or proceeding is assigned is (571)273-8300.
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/ABRAHAM BAHTA/Primary Examiner, Art Unit 2923
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