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 .
REFUSAL
Objections
Specification
The descriptions of the figures are not required to be written in any particular format, however, they must describe the views of the reproductions clearly and accurately. (See Hague Rule 7(5)(a), 37 CFR 1.1024, MPEP 2920.04(a)II.) Fig. 1.1 appears to be a rear right perspective view, Figs. 1.2 and 1.6 appear to be a front right perspective views, and Fig. 1.7 appears to be a top right perspective view. For accuracy, is it suggested that the following descriptions of the reproductions and descriptions in the feature description be amended to read as:
--1.1: Rear, right side perspective view in folded state
1.2: Front, right side perspective view in folded state --
--1.6: Front, right side perspective view in unfolded state
1.7: Top, right side perspective view in unfolded state --
Refusal under 35 U.S.C. 102(a)(1)
The claim is refused under 35 U.S.C. 102(a)(1) as clearly anticipated by the LittleMarksLab Toddler Tower of Etsy (NPL Reference "U") 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 LittleMarksLab Toddler Tower 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.
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Claimed Design
LittleMarksLab Toddler Tower
“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).
“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)).
See MPEP 2152.06 for ways in which the refusal can be overcome.
Conclusion
In conclusion the claim stands refused under 35 U.S.C. §102 as set forth above.
The references cited but not applied are considered cumulative art related to the claimed design.
Reply Reminder
Applicant is reminded that any amendment filed as provided by 37 CFR 1.312 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).
Notes on Correspondence
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/patents/apply/forms, 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.
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 official correspondence issued by the USPTO, including a notification of refusal, please note the following:
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 Electronic Filing System-Web (EFS-Web) (Registered eFilers only uspto.gov/patents/apply
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/maintain/responding-office-actions
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHELLE REEVES whose telephone number is (571)272-9509. The examiner can normally be reached on Mon-Fri from 6:30AM - 2:30PM EST.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Barbara Fox, can be reached at 571-272-4456. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of an application may be obtained from Patent Center. Status information for published applications may be obtained from Patent Center. Status information for unpublished applications is available through Patent Center to authorized users only. Should you have questions about access to the USPTO patent electronic filing system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free).
Examiner interviews are available via a variety of formats see MPEP § 713.01. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) Form at https://www.uspto.gov/InterviewPractice.
/MICHELLE REEVES/Examiner, Art Unit 2931
