DETAILED ACTION
General Information
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 - 35 U.S.C. 102(a)(1)
The claim is rejected under 35 U.S.C. 102(a)(1) as clearly anticipated by Examiner's cited Non Patent Document found at <https://kkuso.com.au/products/dodo-lounge-chair-channel-cord-sandstone> (hereinafter Kkuso Chair, dated 01/29/2025), because the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for a patent.
The appearance of Kkuso Chair 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.
In design patent examination, the standard for novelty in 35 U.S.C. 102 rejections is based upon the “ordinary observer.” This standard distinguishes 35 U.S.C. 102 from 35 U.S.C. 103, which is specifically based on the standard of “a designer of ordinary skill in the art.” The ordinary observer test is the sole test for anticipation. Int'/ Seaway Trading Corp. v. Walgreens Corp., 589 F.3d 1233, 1237-38, 1240 (Fed. Cir. 2009).
This “ordinary observer” has been described as having a less discerning eye. In re Nalbandian, 661 F. 2d 1214, 211 USPQ 782, footnote 2 at 784 (CCPA 1981). “[T]he degree of difference (from the prior art) required to establish a patentable distinction occurs when the ordinary observer takes the new design for a different, and not a modified, already-existing design.” For anticipation to be found, the two designs must be substantially the same. Gorham Co. v. White, 81 U.S. 511,528 (1871). 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)). “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.” See images below:
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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'/ Seaway, 589 F.3d at 1243 (citing Litton Sys., Inc. v. Whirlpool Corp., 728 F.2d 1423, 1444 (Fed. Cir. 1984)).
Claim Rejection - 35 U.S.C. 102(a)(1)
The claim is rejected under 35 U.S.C. 102(a)(1) as clearly anticipated by Examiner's cited Non Patent Document found at <https://www.amazon.com/dp/B0D5CVNHJW?tag=admarketus-20&plpRedirect=mhFallback&ref=clp_hp_h_pc&th=1> (hereinafter Achicsofar Chair, dated 09/24/2026), because the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for a patent.
The appearance of Achicsofar Chair 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.
In design patent examination, the standard for novelty in 35 U.S.C. 102 rejections is based upon the “ordinary observer.” This standard distinguishes 35 U.S.C. 102 from 35 U.S.C. 103, which is specifically based on the standard of “a designer of ordinary skill in the art.” The ordinary observer test is the sole test for anticipation. Int'/ Seaway Trading Corp. v. Walgreens Corp., 589 F.3d 1233, 1237-38, 1240 (Fed. Cir. 2009).
This “ordinary observer” has been described as having a less discerning eye. In re Nalbandian, 661 F. 2d 1214, 211 USPQ 782, footnote 2 at 784 (CCPA 1981). “[T]he degree of difference (from the prior art) required to establish a patentable distinction occurs when the ordinary observer takes the new design for a different, and not a modified, already-existing design.” For anticipation to be found, the two designs must be substantially the same. Gorham Co. v. White, 81 U.S. 511,528 (1871). 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)). “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.” See images below:
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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'/ Seaway, 589 F.3d at 1243 (citing Litton Sys., Inc. v. Whirlpool Corp., 728 F.2d 1423, 1444 (Fed. Cir. 1984)).
Claim Rejection - 35 U.S.C. 102(a)(1)
The claim is rejected under 35 U.S.C. 102(a)(1) as clearly anticipated by Examiner's cited Non Patent Document found at <https://www.amazon.com/portal/customer-reviews/B0DVPGF3MB/ref=cm_cr_arp_d_viewopt_srt?_encoding=UTF8&ie=UTF8&reviewerType=all_reviews&sortBy=recent> (hereinafter Gericco Chair, dated 04/01/2025), because the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for a patent.
The appearance of Gericco Chair 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.
In design patent examination, the standard for novelty in 35 U.S.C. 102 rejections is based upon the “ordinary observer.” This standard distinguishes 35 U.S.C. 102 from 35 U.S.C. 103, which is specifically based on the standard of “a designer of ordinary skill in the art.” The ordinary observer test is the sole test for anticipation. Int'/ Seaway Trading Corp. v. Walgreens Corp., 589 F.3d 1233, 1237-38, 1240 (Fed. Cir. 2009).
This “ordinary observer” has been described as having a less discerning eye. In re Nalbandian, 661 F. 2d 1214, 211 USPQ 782, footnote 2 at 784 (CCPA 1981). “[T]he degree of difference (from the prior art) required to establish a patentable distinction occurs when the ordinary observer takes the new design for a different, and not a modified, already-existing design.” For anticipation to be found, the two designs must be substantially the same. Gorham Co. v. White, 81 U.S. 511,528 (1871). 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)). “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.” See images below:
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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'/ Seaway, 589 F.3d at 1243 (citing Litton Sys., Inc. v. Whirlpool Corp., 728 F.2d 1423, 1444 (Fed. Cir. 1984)).
Claim Rejection - 35 U.S.C. 102(a)(1)
The claim is rejected under 35 U.S.C. 102(a)(1) as clearly anticipated by Examiner's cited Non Patent Document found at <https://www.wayfair.com/furniture/pdp/trule-bean-bag-chair-with-ottoman-comfy-memory-foam-large-lazy-sofa-w112200104.html?piid=1213811652> (hereinafter Compression Chair, dated 02/06/2025), because the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for a patent.
The appearance of Compression Chair 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.
In design patent examination, the standard for novelty in 35 U.S.C. 102 rejections is based upon the “ordinary observer.” This standard distinguishes 35 U.S.C. 102 from 35 U.S.C. 103, which is specifically based on the standard of “a designer of ordinary skill in the art.” The ordinary observer test is the sole test for anticipation. Int'/ Seaway Trading Corp. v. Walgreens Corp., 589 F.3d 1233, 1237-38, 1240 (Fed. Cir. 2009).
This “ordinary observer” has been described as having a less discerning eye. In re Nalbandian, 661 F. 2d 1214, 211 USPQ 782, footnote 2 at 784 (CCPA 1981). “[T]he degree of difference (from the prior art) required to establish a patentable distinction occurs when the ordinary observer takes the new design for a different, and not a modified, already-existing design.” For anticipation to be found, the two designs must be substantially the same. Gorham Co. v. White, 81 U.S. 511,528 (1871). 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)). “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.” See images below:
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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'/ Seaway, 589 F.3d at 1243 (citing Litton Sys., Inc. v. Whirlpool Corp., 728 F.2d 1423, 1444 (Fed. Cir. 1984)).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
The claim stands rejected under 35 U.S.C. 102(a)(1).
The claim stands rejected under 35 U.S.C. 102(a)(1).
The claim stands rejected under 35 U.S.C. 102(a)(1).
The claim stands rejected under 35 U.S.C. 102(a)(1).
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).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PAUL BOHANNON whose telephone number is 408-918-7663. The examiner can normally be reached Monday - Friday, 10 AM - 6 PM, CT. 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, Jennifer Rempfer, can be reached at 571-270-0248. 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.
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/patent/forms/forms-patent-applications-filed-or-after-september-16-2012, 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:
“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: Catherine.ho@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, 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)
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
Mailing should be done sufficiently in advance to ensure the USPTO receipt prior to reply period expiration
• Facsimile to the USPTO's Official Fax Number (571-273-8300) (Do Not Fax Formal Drawings)
• Hand-carry to USPTO's Alexandria, Virginia Customer Service Window
For additional information regarding responding to office actions see:
https://www.uspto.gov/patents-maintaining-patent/responding-office-actions
/PAUL D BOHANNON/Primary Examiner, Art Unit 2932
