DETAILED ACTION
Remarks
Applicant’s September 25, 2026, election of Group II (Embodiment 2, Fig 2.1-2.7) without traverse is acknowledged. Group I (Embodiment 1, Figs. 1.1-1.7) is withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being for the nonelected design.
Claim Rejection - 35 USC §112 (a)&(b)
The claim is rejected under 35 U.S.C. 112 (a)&(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 there are broken lines in the drawing, but they have not been defined in the specification. The drawings and specification do not provide a singular understanding of what is claimed. Dotted and broken lines may mean different things in different circumstances. It must be made entirely clear what they do mean, else the claim is indefinite under 35 U.S.C. 112. It is the examiner's responsibility to obtain definiteness. In re Blum, 153 USPQ 177 (1967).
To overcome this rejection, the examiner suggests that a broken line statement be added to the specification, following the figure descriptions:
"The broken lines depict portions of the Portable Air Quality Measuring Device that form no part of the claimed design"
Claim Rejection - 35 U.S.C. §102(a)(1)
The claim is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Introducing: Air Lab, available from youtube.com since Jan 21, 2025, 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 Air Lab is substantially the same as that of the claimed design. 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.
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“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, 81 U.S. 511, 528 (1871)).
“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 , 589 F.3d at 1243 (citing Litton Sys., Inc. v. Whirlpool Corp., 728 F.2d 1423, 1444 (Fed. Cir. 1984)).
A rejection under 35 U.S.C. 102(a)(1) or 102(a)(2) can be overcome by filing an affidavit or declaration under 37 CFR 1.130 to establish that an applied reference or disclosure that was not made more than one year before the effective filing date of the claimed invention is not prior art under 35 U.S.C. 102(a) due to an exception listed in 35 U.S.C. 102(b). Under 37 CFR 1.130(a), an affidavit or declaration of attribution may be submitted to disqualify a disclosure as prior art because it was made by the inventor or a joint inventor, or the subject matter disclosed was obtained directly or indirectly from the inventor or a joint inventor. Under 37 CFR 1.130(b), an affidavit or declaration of prior public disclosure may be submitted to disqualify an intervening disclosure as prior art if 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 (1) before the date the intervening disclosure was made on which the rejection is based, or (2) before the date the subject matter in the U.S. patent, U.S. patent application publication, or WIPO published application on which the rejection is based was effectively filed. See MPEP §§ 717 and 2155.
Conclusion
The claim stands rejected under 35 USC 102 (a)(1).
A response is required to the Office action to avoid abandonment of the application.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARY ANNE ARNTZEN whose telephone number is (703)756-1439. The examiner can normally be reached Monday-Friday 9AM-5PM EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sandra Snapp, can be reached at (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.
/M.A.A./Examiner, Art Unit 2914 /BRETT MILLER/Examiner, Art Unit 2934
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