UNITED STATES PA TENT AND TRADEMARK OFFICE
`
`UNITED STATES DEPARTMENT OF COMMERCE
`United States Patent and Trademark Office
`Address: COMMISSIONERFORPATENTS
`P.O. Box 1450
`Alexandria, Virginia 22313-1450
`www.uspto.gov
`
`APPLICATION NO.
`
`FILING DATE
`
`FIRST NAMED INVENTOR
`
`ATTORNEY DOCKET NO.
`
`CONFIRMATION NO.
`
`29/824,813
`
`01/27/2022
`
`Merrilee Kick
`
`58822.5US03
`
`7973
`
`01/11/2024
`
`7590
`27683
`Haynes and Boone, LLP
`IP Section
`2801 N. Harwood St.
`Suite 2300
`Dallas, TX 75201
`
`EXAMINER
`
`HILL, KELI L.
`
`ART UNIT
`
`PAPER NUMBER
`
`2922
`
`NOTIFICATION DATE
`
`DELIVERY MODE
`
`01/11/2024
`
`ELECTRONIC
`
`Please find below and/or attached an Office communication concerning this application or proceeding.
`
`The time period for reply, if any, is set in the attached communication.
`
`Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
`following e-mail address(es):
`ipdocketing@haynesboone.com
`
`PTOL-90A (Rev. 04/07)
`
`Page 1
`
`EX-1003 PGR2024-00035
`
`

`

`Notice of Abandonment
`
`Application No.
`
`29/824,813
`Examiner
`
`Applicant(s)
`
`Kick, Merrilee
`Art Unit
`
`2922
`KELI L HILL
`-- The MAILING DA TE of this communication appears on the cover sheet with the correspondence address-(cid:173)
`
`This application is abandoned in view of:
`
`1. ~ Applicant's failure to timely file a proper reply to the Office letter mailed on 20 June 2023.
`(a) 0 A reply was received on __ (with a Certificate of Mailing or Transmission dated __ ), which is after the expiration of the
`period for reply (including a total extension of time of __ month(s)) which expired on __ .
`(b) 0 A proposed reply was received on __ , but it does not constitute a proper reply under 37 CFR 1.113 to the final rejection.
`(A proper reply under 37 CFR 1.113 to a final rejection consists only of:(1) a timely filed amendment which places the
`application in condition for allowance; (2) a timely filed Notice of Appeal (with appeal fee); or (3) if this is utility or plant
`application, a timely filed Request for Continued Examination (RCE) in compliance with 37 CFR 1.114. Note that RCEs are not
`permitted in design applications.)
`(c) 0 A reply was received on __ but it does not constitute a proper reply, or a bona fide attempt at a proper reply, to the non-final
`rejection. See 37 CFR 1.85(a) and 1.111. (See explanation in box 8 below).
`(d) ~ No reply has been received.
`
`2. 0 Applicant's failure to timely pay the required issue fee and publication fee, if applicable, within the statutory period of three months
`from the mailing date of the Notice of Allowance (PTOL-85).
`(a) 0 The issue fee and publication fee, if applicable, was received on __ (with a Certificate of Mailing or Transmission dated
`__ ), which is after the expiration of the statutory period for payment of the issue fee (and publication fee) set in the Notice of
`Allowance (PTOL-85).
`(b) D The submitted fee of$ __ is insufficient. A balance of$ __ is due.
`The issue fee required by 37CFR 1.18 is$ __ . The publication fee, if required by 37 CFR 1.18(d), is$ __ .
`(c) 0 The issue fee and publication fee, if applicable, has not been received.
`
`3. 0 Applicant's failure to timely file corrected drawings as required by, and within the three-month period set in, the Notice of
`Allowability (PTO-37).
`(a) 0 Proposed corrected drawings were received on __ (with a Certificate of Mailing or Transmission dated __ ), which is
`after the expiration of the period for reply.
`(b) 0 No corrected drawings have been received.
`
`4. 0 The letter of express abandonment which is signed by the attorney or agent of record or other party authorized under 37 CFR 1.33
`(b). See 37 CFR 1.138(b).
`
`5. 0 The letter of express abandonment which is signed by an attorney or agent (acting in a representative capacity under 37 CFR
`1.34) upon the filing of a continuing application.
`
`6. 0 The decision by the Patent Trial and Appeal Board rendered on __ and because the period for seeking court review of the
`decision has expired and there are no allowed claims.
`
`7. 0 The dismissal of the appeal in an application having no allowed claims. (When an appeal is dismissed in an application having no
`allowed claims the application stands abandoned. See MPEP 1215.04 subsections I-V for an explanation of the reasons why an
`appeal is dismissed.)
`
`8. 0 The reason(s) below:
`
`/KELI L HILL/
`Primary Examiner, Art Unit 2922
`
`Petitions to revive under 37 CFR 1.137, or requests to withdraw the holding of abandonment under 37 CFR 1.181, should be promptly filed to minimize
`any negative effects on patent term.
`U.S. Patent and Trademark Office
`PTOL-1432 (Rev. 04-19)
`
`Notice of Abandonment
`
`Part of Paper No. 20240108
`
`Page 2
`
`EX-1003 PGR2024-00035
`
`

`

`Page 1 of 2
`P .0. Box 1450
`Alexandria, VA 22313 1450
`www.uspto.gov
`
`ELECTRONIC PAYMENT RECEIPT
`
`APPLICATION#
`29/824,813
`
`RECEIPT DATE /TIME
`10/23/2023 04:46:58 PM ET
`
`ATTORNEY DOCKET#
`58822.SUS03
`
`Title of Invention
`Container
`
`Application Information
`
`APPLICATION TYPE Design - Nonprovisional Application
`under 35 USC 171
`
`PATENT#
`
`-
`
`CONFIRMATION# 7973
`
`FILED BY Q Dismuke
`
`PATENT CENTER# 63059606
`
`AUTHORIZED BY Alan Herda
`
`CUSTOMER# 27683
`
`CORRESPONDENCE
`ADDRESS
`
`-
`
`Payment Information
`
`FILING DATE
`
`01/27/2022
`
`FIRST NAMED Merrilee Kick
`INVENTOR
`
`PAYMENT METHOD
`CARD/ 1103
`
`PAYMENT TRANSACTION ID
`E 20230MG48258849
`
`PAYMENT AUTHORIZED BY
`Q Dismuke
`
`FEE CODE
`
`DESCRIPTION
`
`ITEM PRICE($)
`
`QUANTITY
`
`ITEM TOTAL($)
`
`1253
`
`EXTENSION FOR RESPONSE
`WITHIN THIRD MONTH
`
`1480.00
`
`1
`
`1480.00
`
`TOTAL
`AMOUNT:
`
`$1,480.00
`
`This Acknowledgement Receipt evidences receipt on the noted date by the US PTO of the indicated documents, characterized
`by the applicant, and including page counts, where applicable. It serves as evidence of receipt similar to a Post Card, as
`described in MP E P 503.
`
`New Applications Under 35 U.S.C. 111
`If a new application is being filed and the application includes the necessary components for filing date (see 37 CFR l.53(b)-(d)
`and MPEP 506), a Filing Receipt (37 CFR 1.54) will be issued in due course and the date shown on this Acknowledgement
`Receipt will establish the filing date of the application
`
`National Stage of an International Application under 35 U.S.C. 371
`
`Page 3
`
`EX-1003 PGR2024-00035
`
`

`

`Page 2 of 2
`
`If a timely submission to enter the national stage of an international application is compliant with the conditions of 35 U .S .C.
`371 and other applicable requirements a Form PCT/DO/EO/903 indicating acceptance of the application as a national stage
`submission under 35 U.S.C. 371 will be issued in addition to the Filing Receipt, in due course.
`
`New International Application Filed with the US PTO as a Receiving Office
`If a new international application is being filed and the international application includes the necessary components for an
`international filing date (see PCT Article 11 and MP E P 1810), a Notification of the International Application Number and of the
`International Filing Date (Form PCT/RO/105) will be issued in due course, subjectto prescriptions concerning national security,
`and the date shown on this Acknowledgement Receipt will establish the international filing date of the application.
`
`Page 4
`
`EX-1003 PGR2024-00035
`
`

`

`Page 1 of 2
`P .0. Box 1450
`Alexandria, VA 22313 1450
`www.uspto.gov
`
`ELECTRONIC ACKNOWLEDGEMENT RECEIPT
`
`APPLICATION#
`29/824,813
`
`RECEIPT DATE /TIME
`10/23/2023 04:46:58 PM ET
`
`ATTORNEY DOCKET#
`58822.SUS03
`
`Title of Invention
`Container
`
`Application Information
`
`APPLICATION TYPE Design - Nonprovisional Application
`under 35 USC 171
`
`PATENT#
`
`-
`
`CONFIRMATION# 7973
`
`PATE NT CENTER # 63059606
`
`CUSTOMER# 27683
`
`CORRESPONDENCE
`ADDRESS
`
`-
`
`Documents
`
`DOCUMENT
`
`58822.SU S 03 Request for
`Extension of Time.pdf
`
`Digest
`
`FILED BY Q Dismuke
`
`FILING DATE
`
`01/27/2022
`
`FIRST NAMED Merrilee Kick
`INVENTOR
`
`AUTHORIZED BY Alan Herda
`
`TOTAL DOCUMENTS: 1
`
`PAGES
`
`DESCRIPTION
`
`SIZE (KB)
`
`1
`
`Extension of Time
`
`318 KB
`
`DOCUMENT
`
`MESSAGE DIGEST(SHA-512)
`
`58822.SU S 03 Request for
`Extension of Time.pdf
`
`8EBFAB11A6E4B097412C3B8582128D119FB2B1109A72B872C
`681659C0FA6FDF788701475680C494C59E8FEF056C899B9264
`6D855F728A9F74D2516D89003147A
`
`This Acknowledgement Receipt evidences receipt on the noted date by the US PTO of the indicated documents, characterized
`
`Page 5
`
`EX-1003 PGR2024-00035
`
`

`

`Page 2 of 2
`
`by the applicant, and including page counts, where applicable. It serves as evidence of receipt similar to a Post Card, as
`described in MP E P 503.
`
`New Applications Under 35 U.S.C. 111
`If a new application is being filed and the application includes the necessary components for filing date (see 37 CFR l.53(b)-(d)
`and MPEP 506), a Filing Receipt (37 CFR 1.54) will be issued in due course and the date shown on this Acknowledgement
`Receipt will establish the filing date of the application
`
`National Stage of an International Application under 35 U.S.C. 371
`If a timely submission to enter the national stage of an international application is compliant with the conditions of 35 U .S .C.
`371 and other applicable requirements a Form PCT/DO/EO/903 indicating acceptance of the application as a national stage
`submission under 35 U.S.C. 371 will be issued in addition to the Filing Receipt, in due course.
`
`New International Application Filed with the US PTO as a Receiving Office
`If a new international application is being filed and the international application includes the necessary components for an
`international filing date (see PCT Article 11 and MP E P 1810), a Notification of the International Application Number and of the
`International Filing Date (Form PCT/RO/105) will be issued in due course, subjectto prescriptions concerning national security,
`and the date shown on this Acknowledgement Receipt will establish the international filing date of the application.
`
`Page 6
`
`EX-1003 PGR2024-00035
`
`

`

`PTO/AIA/22 (12-22)
`Approved for use through 05/31/2024. 0MB 0651-0031
`U.S. Patent and Trademark Office; U.S. DEPARTMENT OF COMMERCE
`Under the Paperwork Reduction Act of 1995, no persons are required to respond to a collection of information unless it displays a valid 0MB control number.
`Docket Number (Optional)
`
`PETITION FOR EXTENSION OF TIME UNDER 37 CFR 1.136(a) 58822.5USO3
`
`Application Number 291824 813
`'
`For Container
`Art Unit 2922
`
`I Filed January 27, 2022
`I Examiner Keli L. Hill
`
`This is a request under the provisions of 37 CFR 1.136(a) to extend the period for filing a reply in the above-identified application.
`
`The requested extension and fee are as follows (check time period desired and enter the appropriate fee below):
`
`□ One month (37 CFR 1.17(a)(1))
`□ Two months (37 CFR 1.17(a)(2))
`0 Three months (37 CFR 1.17(a)(3))
`□ Four months (37 CFR 1.17(a)(4))
`□ Five months (37 CFR 1.17(a)(5))
`
`Fee
`
`$220
`
`$640
`
`$1,480
`
`$2,320
`
`$3,160
`
`Small Entit:t Fee
`
`Micro Entit:t Fee
`
`$88
`
`$256
`
`$592
`
`$928
`
`$1,264
`
`$44
`
`$128
`
`$296
`
`$464
`
`$632
`
`$
`
`$
`
`$ 1,480
`
`$
`
`$
`
`□ Applicant asserts small entity status. See 37 CFR 1.27.
`
`Applicant certifies micro entity status. See 37 CFR 1.29.
`□
`Form PTO/SB/15A or B or equivalent must either be enclosed or have been submitted previously.
`A check in the amount of the fee is enclosed.
`□
`
`Payment by credit card. Form PTO-2038 is attached.
`□
`The Director has already been authorized to charge fees in this application to a Deposit Account.
`□
`0 The Director is hereby authorized to charge any fees which may be required, or credit any overpayment, to
`Deposit Account Number _0_8_1_3_9_4 ________ _
`
`Payment made via USPTO's patent electronic filing system (Patent Center or EFS-Web).
`
`WARNING: Information on this form may become public. Credit card information should not be included on this form. Provide
`credit card information and authorization on PTO-2038.
`I am the
`
`D applicant.
`0 attorney or agent of record. Registration number_5_O_4_2_6 __________ _
`D attorney or agent acting under 37 CFR 1.34. Registration number _____________ _
`/Alan N. Herda/
`October 23, 2023
`
`Alan N. Herda
`
`Signature
`
`214-651-5924
`
`Date
`
`Telephone Number
`NOTE: This form must be signed in accordance with 37 CFR 1.33. See 37 CFR 1.4 for signature requirements and certifications. Submit
`multiple forms if more than one signature is required, see below*.
`
`Typed or printed name
`
`0 * Total of_1 _______ forms are submitted.
`
`A Federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with an
`information collection subject to the requirements of the Paperwork Reduction Act of 1995, unless the information collection has a currently valid 0MB Control
`Number. The 0MB Control Number for this information collection is 0651-0031. Public burden for this form is estimated to average 6 minutes per response,
`including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the
`information collection. Send comments regarding this burden estimate or any other aspect of this information collection, including suggestions for reducing this
`burden to the Chief Administrative Officer, United States Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313-1450 or email
`lnformationCollection@uspto.gov. DO NOT SEND FEES OR COMPLETED FORMS TO THIS ADDRESS. If filing this completed form by mail, send to:
`Commissioner for Patents, P .0. Box 1450, Alexandria, VA 22313-1450.
`
`If you need assistance in completing the form, call 1-800-PTO-9199 and select option 2.
`
`Page 7
`
`EX-1003 PGR2024-00035
`
`

`

`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`UNITED STATES DEPARTMENT OF COMMERCE
`United States Patent and Trademark Office
`Address: COMMISSIONER FOR PATENTS
`P.O. Box 1450
`Alexandria, Virginia 22313-1450
`www.uspto.gov
`
`APPLICATION NUMBER
`
`FILING OR 371(C) DATE
`
`FIRST NAMED APPLICANT
`
`ATTY.DOCKET NO./TITLE
`
`REQUEST ID
`
`29/824,813
`
`01/27/2022
`
`Merrilee Kick
`
`58822.5US03
`
`196929
`
`Acknowledgement of Loss of Entitlement to Entity Status Discount
`
`The entity status change request below filed through Private PAIR on 10/23/2023 has been accepted.
`
`CERTIFICATIONS:
`Change of Entity Status:
`X Applicant changing to regular undiscounted fee status.
`NOTE: Checking this box will be taken to be notification of loss of entitlement to small or micro entity status, as
`applicable.
`
`This portion must be completed by the signatory or signatories making the entity status change in accordance
`with 37 CFR 1.4(d)(4).
`
`Signature:
`Name:
`Registration Number:
`
`I Alan N. Herda/
`Alan N. Herda
`50426
`
`Page 8
`
`EX-1003 PGR2024-00035
`
`

`

`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`UNITED STATES DEPARTMENT OF COMMERCE
`United States Patent and Trademark Office
`Address: COMMISSIONERFORPATENTS
`P.O. Box 1450
`Alexandria, Virginia 22313-1450
`www.uspto.gov
`
`APPLICATION NO.
`
`FILING DATE
`
`FIRST NAMED INVENTOR
`
`ATTORNEY DOCKET NO.
`
`CONFIRMATION NO.
`
`29/824,813
`
`01/27/2022
`
`Merrilee Kick
`
`58822.5US03
`
`7973
`
`06/20/2023
`7590
`27683
`HA YNES AND BOONE, LLP
`IP Section
`2323 Victory A venue
`Suite 700
`Dallas, TX 75219
`
`EXAMINER
`
`HILL, KELI L.
`
`ART UNIT
`
`PAPER NUMBER
`
`2922
`
`NOTIFICATION DATE
`
`DELIVERY MODE
`
`06/20/2023
`
`ELECTRONIC
`
`Please find below and/or attached an Office communication concerning this application or proceeding.
`
`The time period for reply, if any, is set in the attached communication.
`
`Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
`following e-mail address(es):
`
`i pdocketing @ha ynes boone.com
`
`PTOL-90A (Rev. 04/07)
`
`Page 9
`
`EX-1003 PGR2024-00035
`
`

`

`Office Action Summary
`
`Application No.
`29/824,813
`
`Examiner
`KELI L HILL
`
`Applicant(s)
`Kick, Merrilee
`
`Art Unit
`2922
`
`AIA (FITF) Status
`No
`
`-- The MAILING DA TE of this communication appears on the cover sheet with the correspondence address -(cid:173)
`Period for Reply
`A SHORTENED STATUTORY PERIOD FOR REPLY IS SET TO EXPIRE 3 MONTHS FROM THE MAILING
`DATE OF THIS COMMUNICATION.
`Extensions of time may be available under the provisions of 37 CFR 1.136(a). In no event, however, may a reply be timely filed after SIX (6) MONTHS from the mailing
`date of this communication.
`If NO period for reply is specified above, the maximum statutory period will apply and will expire SIX (6) MONTHS from the mailing date of this communication.
`Failure to reply within the set or extended period for reply will, by statute, cause the application to become ABANDONED (35 U.S.C. § 133).
`Any reply received by the Office later than three months after the mailing date of this communication, even if timely filed, may reduce any earned patent term
`adjustment. See 37 CFR 1.704(b).
`
`Status
`1 )0 Responsive to communication(s) filed on FILINGS THROUGH 05/15/2023.
`□ A declaration(s)/affidavit(s) under 37 CFR 1.130(b) was/were filed on __ .
`2b) 0 This action is non-final.
`2a)D This action is FINAL.
`3) □ An election was made by the applicant in response to a restriction requirement set forth during the interview
`on __ ; the restriction requirement and election have been incorporated into this action.
`4)0 Since this application is in condition for allowance except for formal matters, prosecution as to the merits is
`closed in accordance with the practice under Ex parte Quayle, 1935 C.D. 11, 453 O.G. 213.
`
`Disposition of Claims*
`5) 0 Claim(s) 1 is/are pending in the application.
`5a) Of the above claim(s)
`is/are withdrawn from consideration.
`6) D Claim(s)
`is/are allowed.
`7) 0 Claim(s) 1 is/are rejected.
`8) □ Claim(s) __ is/are objected to.
`9) D Claim(s) __ are subject to restriction and/or election requirement
`* If any claims have been determined allowable, you may be eligible to benefit from the Patent Prosecution Highway program at a
`participating intellectual property office for the corresponding application. For more information, please see
`http://www.uspto.gov/patents/init events/pph/index.jsp or send an inquiry to PPHfeedback@uspto.gov.
`
`Application Papers
`10) □ The specification is objected to by the Examiner.
`11 ) □ The drawing(s) filed on __ is/are: a) □ accepted or b) □ objected to by the Examiner.
`Applicant may not request that any objection to the drawing(s) be held in abeyance. See 37 CFR 1.85(a).
`Replacement drawing sheet(s) including the correction is required if the drawing(s) is objected to. See 37 CFR 1.121 (d).
`
`Priority under 35 U.S.C. § 119
`12) □ Acknowledgment is made of a claim for foreign priority under 35 U.S.C. § 119(a)-(d) or (f).
`Certified copies:
`c) □ None of the:
`b)D Some**
`a) □ All
`1. □ Certified copies of the priority documents have been received.
`2. □ Certified copies of the priority documents have been received in Application No. __ .
`3. □ Copies of the certified copies of the priority documents have been received in this National Stage
`application from the International Bureau (PCT Rule 17.2(a)).
`** See the attached detailed Office action for a list of the certified copies not received.
`
`Attachment{s)
`1) D Notice of References Cited (PTO-892)
`2) D Information Disclosure Statement(s) (PTO/SB/08a and/or PTO/SB/08b)
`Paper No(s)/Mail Date __ .
`U.S. Patent and Trademark Office
`PTOL-326 (Rev. 11-13)
`
`Office Action Summary
`
`3) D Interview Summary (PTO-413)
`Paper No(s)/Mail Date __ .
`4) D Other: __ .
`
`Part of Paper No./Mail Date 20230610
`
`Page 10
`
`EX-1003 PGR2024-00035
`
`

`

`Application/Control Number: 29/824,813
`Art Unit: 2922
`
`Page 2
`
`Notice of Pre-A/A 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.
`
`Amendment Acknowledgement
`
`Acknowledgement is made of the response submitted by the applicant on May 15, 2023,
`
`including a CPA, remarks and replacement drawings.
`
`Application Status Acknowledgement
`
`The request filed on 05/15/2023 for a Continued Prosecution Application (CPA) under 37 CFR
`
`1.53(d) based on parent Application No. 29/824813 is acceptable and a CPA has been established. An
`
`action on the CPA follows.
`
`DETAILED ACTION
`
`RE.TECTION(S)
`
`1. Reiection under 35 U.S.C. 112(a) and (b)
`
`The claim is rejected under 35 U.S.C. 112(a) and (b), as the claimed invention is not described in
`
`such full, clear, concise and exact terms 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 nonenabling because the disclosure is unclear, as the exact shape and
`
`appearance of the design cannot be determined due to the reasons set forth below:
`
`The exact appearance, depth and contour of the poptop feature seen in Fig. 2 (and all
`
`details/features shown within and around it) cannot be fully understood (see Annotated Drawing Letter
`
`A). It is unclear how the various parts of the poptop relate to each other and what parts are higher or lower
`
`in depth than others. From this single view understanding, the contour, thickness and planar relationship
`
`of the various parts of the poptop is open to multiple interpretations and cannot be determined without
`
`resorting to conjecture. While the varied line weights between elements has been removed from the
`
`poptop feature in the new drawing view, the general appearance of the poptop still asserts differences in
`
`Page 11
`
`EX-1003 PGR2024-00035
`
`

`

`Application/Control Number: 29/824,813
`Art Unit: 2922
`
`Page 3
`
`depth and/or contour changes between features that cannot be fully understood. This includes variations
`
`asserted between the pulltab portion and the features shown surrounding (tear line/tear strip, etc) and
`
`within it (rivet, etc).
`
`Additionally, the planar relationship of the poptop feature relative to the understood outer rim of
`
`the container neck remains unclear, as there is no way to determine whether the poptop is on a surface
`
`that is even with or depressed (and at what depth) into the container body (see Annotated Drawing
`
`Letter B).
`
`A: Exact shape 1 contour,
`depth and planar
`relationship of the
`various poptop features
`cannot be fully
`understood.
`
`~ ;
`~ ~
`,,,
`~ ..
`~ ';
`\ : .
`
`\:. ,•,
`
`..... -··..-·
`
`B: Exact
`,./ depth/planar
`relationship of
`poptop relative to
`neck sidewall is
`unclear.
`
`In order to overcome the rejection under 35 U.S.C. 112(a) and (b), it is suggested that Applicant:
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`Application/Control Number: 29/824,813
`Art Unit: 2922
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`Page 4
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`• Disclaim the poptop feature seen in the Fig. 2 top view (and any/all details shown within it)
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`which are considered indefinite and nonenabling by converting it to broken lines.
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`It is suggested that Applicant submit large, clear drawings which show the details of the design
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`clearly and accurately without the addition of new matter (35 U.S.C. 132, 37 CFR 1.121). Applicant is
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`reminded that if the surface shape is not evident from the disclosure as filed, the addition of surface
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`shading or additional views after filing may constitute new matter (37 CFR 1.152(11)).
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`2. Examiner's Comments to Applicant's Remarks
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`Applicant has made the following arguments regarding the merits of the above rejection:
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`A)
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`Applicant asserts that "The poptop feature itself aligns with the facts of In re Maatita ... " because
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`" ... while the rest of the container arguably includes three- dimensionality, Applicant has amended the
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`drawings (by removing the varied line weights) to clarify that the pop top feature itself is claimed two(cid:173)
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`dimensionally." (Remarks, p. 4).
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`Based on these remarks, Applicant has attempted to describe the claim as two separate 'parts'
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`((1)- the poptop; and, (2)- the container body), denoting the poptop as two-dimensional and the container
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`body as three-dimensional. The Examiner respectfully disagrees with this assessment. A design is
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`directed to the claim of a single article. The instant application discloses a design claim illustrating three
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`dimensional characteristics of a whole Container, from both elevation and plan views, including the
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`various contours and features of the Container as seen from top and bottom surfaces, the curved surfaces
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`of the claimed body, neck and lip portions, in addition to height and width. While the scope of the design
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`has been broadened through the use of broken lines to disclaim some portions of the article, the scope is
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`still directed to a fully three-dimensional article whose features include a poptop and container body.
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`B)
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`Applicant argues that the Fig. 2 top plan view clearly demonstrates the two-dimensional
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`perspective ' ... from which the poptop feature should be viewed.', noting that this makes it no different
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`than understanding the single plan view of a shoe bottom in Maatita. Applicant further argues that the
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`claim meets the requirements for definiteness and enablement in view of rationale set forth in In re
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`Maatita, 900 F.3d 1369 (Fed. Cir. 2018). Applicant cites to statements appearing in Maatita, asserting
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`Application/Control Number: 29/824,813
`Art Unit: 2922
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`Page 5
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`that they apply equally to the present case, noting that 'While a poptop is typically three-dimensional, that
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`does not change the fact that its ornamental design is capable of being disclosed and judged from a two(cid:173)
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`dimensional plan or planar-view perspective;" that "a potential infringer would not be left in doubt as to
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`how to determine infringement;" and that "Applicant's decision not to disclose all possible depth, shape,
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`contour or planar relationship choices would not preclude an ordinary observer from understanding the
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`claimed design ... " (Remarks, p. 6-7).
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`The examiner disagrees because the comparison is flawed, as the facts of In re Maatita are
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`differentiated from the facts of the present application. Maatita shows ONLY a single, plan view that
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`discloses the exact configuration of the bottom of the shoe. One cannot compare what is shown in a fully
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`rendered three-dimensional article to what is disclosed in a single, two-dimensional plan view. If, for
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`example, the claim was directed to only a poptop shown in a single, plan view, then, an understanding of
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`that claim as a two-dimensional article would have to be taken into consideration during evaluation of the
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`application. However, the claimed Container is an article of depth and dimension, clearly indicated by
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`ALL of the features shown in solid lines throughout the multiple views of the drawing disclosure. The
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`purpose of the disclosure is to show said depth and dimension in relation to plan and elevation views,
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`thus, the three-dimensional appearance of the full article is relevant to enablement. The full drawing
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`disclosure asserts that the design is applied to a three-dimensional article, therefore, the drawing and
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`specification must be commensurate with the protection sought. Philco Corp. v. Admiral Corp., 199 F.
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`Supp. 797, 131 USPQ 413 (D. Del. 1961).
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`C)
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`Applicant goes on to assert that in light of the incorporation by reference of parent applications
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`16/800195 and 12/762934 ("'934 Application"), the depth/spatial relationship of the poptop feature
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`relative to the outer rim of the container neck as seen in Fig. 2 of the instant application, does meet the
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`requirement for definiteness and enablement. This position relies on details seen in FIG. 5 of the '934
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`Application ("FIG. 5") and language in its' specification, noting "the container lid 113 ... include[s] a
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`weakened or scored area 135 which deforms and provides an opening when the 'pull top' arm 133 ... [is]
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`pivoted by the user." (Remarks, p. 8-10).
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`Application/Control Number: 29/824,813
`Art Unit: 2922
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`Page 6
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`The Examiner respectfully disagrees. In the FIG. 5 drawing view, it is clearly noted that the lip
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`and lid portions are shown enlarged as compared to the remaining features of the Container (reproduced
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`below). Taking this into consideration, the information relayed in FIG. 5 cannot be relied upon as
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`explanation of any specific understanding as to the spatial relationship of the various structural elements
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`as seen in the views of the claimed design disclosure.
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`The relationship of the enlarged lip and lid relative to the size and positioning of the Container
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`sidewall/body is clearly distorted in the FIG. 5 drawing view. These details are inconsistent with the
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`disclosure as shown in Figs. 1, 2 and 4 of the '934 Application and in all views of the instant design
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`application. Examples of this distortion include the outermost edge of the lip is shown to stick out further
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`than the container body sidewall (Annotation 'Cl') and the width of the lip is not scaled equally to the
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`height of neck (Annotation 'C2'). Additionally, the enlarged scale of the lip and lid portions in FIG. 5
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`also means that it is highly unlikely that the visible portion of the lid extends to show the area of the lid
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`that is claimed/shown in solid lines in the Fig. 2 views of the '934 Application/instant application
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`(Annotation 'C3'). This means there is not enough information disclosed in FIG. 5 to determine if there
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`are any further variations in plane in the area of the innermost contour lines/poptop. The noted distortion
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`makes any attempt at comparing and relying on FIG. 5 to define any specific understanding as to the
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`depth/contour changes seen in the design claim indefinite and non-enabling, as it is unclear and open to
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`multiple interpretations.
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`EX-1003 PGR2024-00035
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`Application/Control Number: 29/824,813
`Art Unit: 2922
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`Page 7
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`Side Vlew - Lid & Lip of Container
`(Note: The Up and Ud are enlarged to show hook)
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`Figure 5
`(Of App. #121762935)
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`Page 16
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`EX-1003 PGR2024-00035
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`Application/Control Number: 29/824,813
`Art Unit: 2922
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`Page 8
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`. )nnr?>?r:·· l)?nnn~rrr,rw rx--·· rw··-rrrr>r>
`
`FIGURE 1
`(Portion)
`
`(Of App. #12/762934)
`FULLY ENLARGED to
`Match Neck Height seen in FIG. 5
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`EX-1003 PGR2024-00035
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`Application/Control Number: 29/824,813
`Art Unit: 2922
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`3. Conclusion
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`Page 9
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`The claimed design is patentable over the references cited. However, a final determination of
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`patentability will be made upon resolution of the above rejection.
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`The claim stands rejected under 35 U.S.C. 112(a) and (b).
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`4. Contact Information
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`Any inquiry concerning this communication or earlier communications from the examiner should
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`be directed to KELI L. HILL whose telephone number is (571)272-4375. The examiner can normally be
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`reached on M-Th: 6a-4p. Examiner interviews are available via telephone, in-person, and video
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`conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant
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`is encouraged to use the USPTO Automated Interview Request (AIR) at
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`http://v-i,vw .. uspto.gov/tnterviewpn:1octice.
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`If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Garth
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`Rademaker, can be reached at (303) 297.4274. The fax phone number for the organization where this
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`application or proceeding is assigned is (571) 273-8300.
`
`General questions regarding patent examining policy, assistance with filling out forms, or
`
`general information concerning rules, procedures and fees, should be directed to the Inventors
`
`Assistance Center (IAC). The IAC is staffed by former Supervisory Patent Examiners and experienced
`
`Primary Examiners who answer general questions concerning patent examining policy and procedure.
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`Assistance is available at the IAC Monday - Friday, 8:30am - 5:00pm (EST) at (800) 786-9199 (IN
`
`USA OR CANADA) or (571) 272-1000.
`
`Information regarding the status of an application may be obtained from the Patent Application
`
`Information Retrieval (PAIR) system. Status information for published applications may be obtained
`
`from either Private PAIR or Public PAIR. Status information for unpublished applications is available
`
`through Private PAIR only. For more information about the PAIR system, see http://pair(cid:173)
`
`direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic
`
`Business Center (EBC) at 866-217 -9197 (toll-free). If you would like assistance from a US PTO Customer
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`Page 18
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`Application/Control Number: 29/824,813
`Art Unit: 2922
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`Page 10
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`Service Represent