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This week’s batch is the 509 design patents that issued on October 13, 2026, read through their prosecution histories. The most useful files came from Lamb Weston. In two applications for cut potato products, the examiner cited a 1972 utility patent and an online recipe post, each showing a similar triangular shape. Both times the applicant used the reference’s own text to show that the shape was raw dough or an uncooked strip that the ordinary observer never sees in the finished article. Both rejections were withdrawn without amendment.
The rest of the list covers three ways to beat an Amazon “Date First Available,” a foreign priority document that supported replacing an entire drawing set filed in error, a grace-period reference cleared with no declaration at all, Hague drawings refiled to restore priority, new orthographic views added after filing from a projection sheet, a bedframe whose hidden features counted because buyers see the frame without a mattress, a garment pocket saved by claiming its neighbor, a petition the Office of Petitions said design applicants do not need, and alternate positions that beat a “commonplace” rejection.
The Week in Numbers
- 509 issued prosecution histories: 368 in the 29 series, 134 in the 30 series and 7 Hague designations in the 35 series. Median time from filing to issue: about 23 months. The range ran from about 7 months to a little over 6 years.
- How they got there: about 385 were allowed without a final rejection or an Ex parte Quayle action. About 79 received a final rejection and about 51 a Quayle action. About 53 had a restriction requirement. 15 drew an advisory action. 7 were withdrawn from issue after allowance.
- Rejections by ground: 35 USC 112, about 330 files. 35 USC 102, about 98 files. 35 USC 103, 34 files. Double patenting, about 56 files, including about 12 same-design rejections under 35 USC 171.
- Rule 130 declarations: about 80 files. Rule 132 declarations: 4 files. Interview summaries: about 70 files. Appeals: none.
- LKQ v. GM cited: 2 files, both by the applicant. Examiners used the pre-LKQ “so related” language of In re Glavas and In re Rosen in about 8 files.
- Applications abandoned and later revived: 6.
Method note: these are file-level counts across the 509 histories. One file can carry several grounds, so the categories overlap. The counts come from the OCR’d text of each file, and the smaller figures should be read as approximate.
The Top Ten
1. The ordinary observer never sees the raw shape
The file: Application No. 29/983,402 (cut potato product, D1,152,316) and Application No. 29/983,417 (cut potato product, D1,152,318), Lamb Weston.
The problem: In the first file, the examiner rejected the claim as anticipated by a 1972 utility patent, US 3,645,748, whose figure shows a triangular potato strip with concave sides. In the second, the anticipating reference was an online recipe post, “Best Kransekage,” showing hand-shaped raw marzipan dough.
The move: In both files the applicant read the reference against itself. The 1972 patent explains that the concave sides are designed so that “cooking deforms them into the straightsided structure desired in the ultimate product,” so the applicant argued that the raw shape “is not visible to the consumer (i.e. ordinary observer) in the article of manufacture that results after cooking.” Against the recipe post, it cited SurgiSil for the rule that a design must be “a definite, preconceived thing” and argued that the hand-formed dough was “merely the chance result of a method,” pointing to other dough pieces in the same photo with different shapes.
The result: Both rejections were withdrawn and both claims allowed, with no amendment.
The takeaway: When a reference shows an intermediate stage of a process, ask what the ordinary observer actually encounters. A shape that exists only before cooking, molding or finishing may not anticipate the finished article.
2. Three ways to beat an Amazon “Date First Available”
The file: Application No. 30/019,781 (air freshener, D1,153,630), Procter & Gamble; Application No. 30/006,827 (vehicle rescue device, D1,153,933); and Application No. 29/821,625 (positioning bed pad, D1,152,564).
The problem: In each file, the examiner rejected the claim over an Amazon listing dated by its “Date First Available,” which fell before the effective filing date. For the Febreze vent clip, the date was June 27, 2014.
The move: Each applicant attacked the date, not the design. P&G filed two Rule 132 declarations. The joint inventor put the launch of the pictured design no earlier than January 1, 2023, and the employee who manages Febreze online content stated that it “was not launched or made available on Amazon before at least August 2024.” It showed that Vendor Central lets images “be replaced anytime by another upload for that ASIN.” In the rescue-device file, a Seller Central screenshot showed that the child ASIN for the pictured product was created on August 19, 2025, after the May 29, 2025 priority date. Counsel also noted that the action gave “two different dates for the same reference.” In the bed pad file, a Rule 130(a) declaration relayed the seller’s explanation that the ZHEEYI listing reused an old URL first used for a wedge pillow, and Seller Central showed the bed pad created under that ASIN on 09/07/2020, after the June 14, 2020 parent filing date.
The result: All three rejections were withdrawn and the claims allowed.
The takeaway: The “Date First Available” belongs to the ASIN, not to the product in today’s photos. ASIN creation dates and testimony from whoever manages the listing can defeat it.
3. An incorporated priority document supports replacing the whole drawing set
The file: Application No. 30/012,715 (monitor, D1,153,197), LG Electronics.
The problem: The examiner provisionally rejected the claim under 35 USC 171 as claiming the same design as a copending application, which claimed a curved monitor. The drawings as filed showed a curved monitor too, while the applicant’s Korean priority application showed a flat one.
The move: In an interview, counsel proposed claiming the flat monitor, with support in the priority documents, and the applicant then replaced the entire drawing set with it. It relied on the incorporation by reference of the priority application in the original specification and filed a side-by-side comparison of each figure. It also filed a terminal disclaimer.
The result: At a second interview the parties confirmed that “the originally filed drawings in the present application were filed as a clerical error, since the drawings corresponded to a slightly different monitor.” The examiner entered the replacement drawings, withdrew the same-design rejection in view of the terminal disclaimer and the amendments, and allowed the claim.
The takeaway: Incorporating the foreign priority application by reference at filing is cheap insurance. Here it supported a wholesale drawing replacement that would otherwise have been new matter.
4. A grace-period reference cleared with no declaration
The file: Application No. 29/997,614 (kids easel, D1,153,428).
The problem: The examiner rejected the claim as anticipated by the applicant’s own Chinese design, CN 308836858, published in September 2024 within the grace period, and advised that any affidavit “should be filed under 37 CFR 1.130.”
The move: The applicant declined to file one. It argued that “the reference itself identifies only the same inventive entity as the present application, thereby establishing on its face that the disclosure was made by the inventor or a joint inventor,” and cited the USPTO’s own first-inventor-to-file training materials on Rule 130 declarations.
The result: The rejection was “carefully considered in view of Applicant’s remarks” and withdrawn. Allowed.
The takeaway: When a grace-period reference names only your inventors, argue the exception on the face of the reference. That keeps a sworn statement out of the file.
5. Refiling the Hague drawings to save the priority date
The file: Application No. 30/003,743 (magnetic toy tile, D1,153,476), Brave Toys, with sibling Applications No. 30/003,726, No. 30/003,737 and No. 30/003,830.
The problem: Each US application, filed in May 2025, claimed the benefit of Hague application 35/518,937, filed July 31, 2023. The examiner found that the US drawings had changed the design (in No. 30003726, “Contour line A has been omitted”) and, citing In re Salmon, denied the benefit claim. Without it, Connetix Instagram and Facebook posts from August 2023 became prior art, and the examiner rejected the claims as obvious.
The move: According to the applicant’s remarks, in an interview “the Office stated that utilizing the Hague application drawings would perfect the priority claim and remove the need for a corrected application data sheet.” The applicant refiled the Hague drawings as replacement sheets, and later cleaner black-and-white versions.
The result: The obviousness rejection over the August 2023 posts was not repeated, and all four applications were allowed after the Hague drawings were refiled.
The takeaway: A child application whose drawings drift from the Hague parent loses its date. Going back to the parent’s drawings is often the fastest fix.
6. New views added after filing, built from a projection sheet
The file: Application No. 29/758,135 (therapy device, D1,153,757), TEQCool.
The problem: Filed in 2020 with only perspective, top and bottom views, the claim was rejected under 35 USC 112 because the membrane’s thickness and curvature could not be understood. In an interview the examiner said it “would be hard to judge” whether new views were new matter without seeing them.
The move: The applicant drew new side, front and back views and filed with them a projection sheet so the examiner could see that every line came from an original view. A first set, drawn on the non-elected embodiment, was objected to. The second set, on the elected embodiment, came with “the projection sheet of Fig. 2 used to prepare Figs. 4-7.”
The result: The new views were entered without a new matter rejection, and the claim was allowed.
The takeaway: Adding views after filing is usually new matter. Showing the projection that derives each new line from an original view can change the answer.
7. Hidden in use, but not at the point of sale
The file: Application No. 29/957,781 (bedframe, D1,152,539), Thuma.
The problem: The examiner rejected the claim as anticipated by a Leesa bedframe on Amazon. The features the applicant relied on, the corner joinery and the way the slats sit in the frame, are covered by a mattress in use.
The move: The applicant argued those features anyway, and its drawings included partially exploded views and enlarged views of the joinery between the slats.
The result: The examiner agreed: “Although all of the features the applicant argues distinguish the claim from the prior art are not visible when the claim is in use with a mattress, the examiner agrees the ordinary observer would notice the following features when viewing the claim without a mattress for purchase,” naming the corner joinery and the slats nesting into the frame sides. The claim was allowed.
The takeaway: For products covered in use, point the examiner to the purchaser, who sees the article before it is covered. The examiner’s statement also pins scope to the features named.
8. Trompe l’oeil art, and the pocket next door
The file: Application No. 29/848,121 (garment with eyeglass pocket, D1,152,356).
The problem: The claim covered a sleeve pocket for eyeglasses, with the garment in broken lines. The examiner rejected it as obvious over a robe pocket in view of a vintage eyeglass case, relying on fashion art for “the application of trompe l’oeil techniques on garments and accessories.” A boundary the applicant drew around the pocket drew a new matter rejection; the examiner said any boundary “should me [sic] made to an existing boundary or edge of the garment as originally shown.”
The move: The applicant redrew the boundary along the original sleeve and argued LKQ, without success through a continued prosecution application. In a second interview it proposed claiming the adjacent chest pocket, and the examiner advised that a “substantially flat chest pocket could possibly overcome current rejection.”
The result: With the chest pocket converted to solid lines, the rejection was withdrawn and the claim allowed. The application was later abandoned for a late issue fee and revived.
The takeaway: When the novelty is placement, broken-line surroundings cannot carry it. Claiming a neighboring feature can supply the context the examiner needs.
9. A benefit-claim petition design applicants do not need
The file: Application No. 29/823,522 (overdose resistant drug delivery syringe, D1,153,678) and Application No. 30/002,113 (medication infusion device, D1,153,677).
The problem: In each file, the applicant wanted to add or correct a benefit claim under 35 USC 120 to an earlier design application and filed a petition under 37 CFR 1.78(e) for an unintentionally delayed claim, with its fee.
The move: The Office of Petitions looked at whether the petition was needed at all.
The result: Both petitions were dismissed as unnecessary. “In a design application, the benefit claim to the prior filed application is only required to be presented during the pendency of the application.” In the infusion device file, the decision added that a 1.78(e) petition “is only necessary to add a benefit claim under 35 U.S.C. § 120 to a design application if the application has issued as a patent.” The benefit claims were entered. In that file the applicant had also withdrawn the application from issue in favor of a continued prosecution application to keep it pending.
The takeaway: The four- and sixteen-month benefit-claim deadlines do not apply to design applications. While the application is pending, a corrected application data sheet is enough.
10. Alternate positions beat a “commonplace” rejection
The file: Application No. 29/854,263 (notebook computer, D1,153,205), Compal Electronics.
The problem: The examiner rejected the claim as obvious over two published utility applications showing dual-screen devices, reasoning that the modifications were commonplace in the field.
The move: The applicant did not argue static features. It argued that the claim includes the appearance of the two screens in three positions, shown in Figs. 1, 9 and 11, and that “the appearance changes of the two screens of the present application in the three different states have not been disclosed by Kulkarni or Liu.” The examiner had earlier suggested that the alternate views be described as configurations of one device rather than as states, so that they read as one design.
The result: The rejection was withdrawn “in response to the remarks, which are persuasive that the claim is patentable over the combination of Kulkarni and Liu,” with the examiner citing the three positions. Allowed.
The takeaway: Alternate-position views are part of the claim. When the art shows the article in only one position, the other positions can carry patentability.
Honorable Mentions
- Application No. 29/974,797 (digital camera with multi-positional monitor, D1,153,381): Arguing under LKQ that an Amazon award board is not analogous art to a camera monitor, and stressing the “creative significance” of beveling only the right-side corners, the applicant got an obviousness rejection withdrawn.
- Application No. 29/934,696 (display screen with graphical user interface, D1,153,228): The examiner found no animation claimed because the frames differed only in broken lines. Converting the changing areas to solid lines cured it.
- Application No. 29/988,891 (combination dog harness and pouch, D1,153,954): A web reference carried several dates, the earliest outside the grace period. The applicant showed that the whole harness first appeared on 03/11/2024, and the rejection was withdrawn on a Rule 130(a) declaration.
- Application No. 29/911,254 (display screen with animated graphical user interface, D1,153,223), Salesforce: A remarks-only argument under 35 USC 102(b)(1)(B), backed by a Wayback capture of the applicant’s earlier blog post, failed against a YouTube reference. An inventor’s Rule 130(a) declaration filed after final overcame it.
- Application No. 29/881,552 (display screen with graphical user interface, D1,153,219): After allowance, a Rule 312 amendment added a statement that the dashed graphics inside the screen form part of the claimed design.
- Application No. 29/901,182 (soft box, D1,153,388): The examiner allowed the case on an after-final reply filed past the statutory date, then withdrew the allowance because “The afterfinal amendment was not timely filed.” The application had to be revived.
- Application No. 29/907,763 (vehicle wheel rim, D1,152,954): The application was withdrawn from issue after the issue fee was paid and rejected over an EU registration from the applicant’s own IDS. A feature-by-feature argument got it allowed again.
- Application No. 30/012,329 (display screen with graphical user interface, D1,153,245): A drawing amendment that would need a new search was refused entry because the original invention had been “constructively elected by original presentation.” A continued prosecution application and claimed numerals in the icon got it allowed.
Enforcement Watch
- A declaration accepted outside the grace period. In Application No. 29/904,951 (pet stairs, D1,153,970), the inventor’s Rule 130(a) declaration says the cited Amazon disclosure “was made by me on September 8, 2022.” The application was filed October 13, 2023, and the record shows no foreign priority claim, so the disclosure appears to fall outside the one-year grace period. The rejection was withdrawn anyway.
- Terminal disclaimers filed against same-design rejections. In Applications No. 29/956,516 (D1,153,741) and No. 29/956,518 (D1,153,742), each handpiece cartridge was rejected under 35 USC 171 as “claiming the same design” as the other, and each was allowed on a terminal disclaimer, which cannot cure a same-design rejection.
- An examiner’s amendment that moved a disclosure date. In Application No. 30/010,057 (chair, D1,152,535), the applicant’s statement of prior disclosure gave a westelm.com date of June 28, 2024. The examiner’s amendment rewrote it to March 23, 2024, more than a year before the June 25, 2025 filing date. The printed patent omits the statement.
- Scope pinned by the prosecution record. In Application No. 29/957,781, the examiner named the corner joinery and nesting slats. In Application No. 29/961,531 (bathroom sink faucet, D1,153,578), the reasons for allowance adopt the applicant’s “sharp edges and defined corners.” In the Lamb Weston files, the applicant relied on sharp corner points and concave sides.
- Who sold it. In Application No. 29/966,178 (pet playpen, D1,153,937), the declaration presents the Amazon seller as an authorized seller, while an exhibit shows the inventor is the seller’s own business manager.
- Revived applications. Applications No. 29/848,121, No. 29/798,114, No. 29/901,182, No. 29/869,075, No. 29/949,004 and No. 29/886,362 were abandoned and revived, each with the terminal disclaimer a design revival requires.
What to Take From the Week
- Before conceding a reference, ask whether the ordinary observer ever sees the shape it shows.
- Attack an Amazon “Date First Available” with ASIN creation dates, image histories and testimony from whoever runs the listing.
- Incorporate the foreign priority application by reference in every design filing.
- When a grace-period reference names only your inventors, argue the exception on its face before filing a declaration.
- Keep child application drawings identical to the Hague or parent drawings.
- If you must add views, show the projection that derives them from the original views.
- For articles covered in use, argue what the purchaser sees.
- When placement is the point, claim a neighboring feature rather than rely on broken lines.
- Add a design benefit claim by corrected application data sheet while the application is pending; skip the 1.78(e) petition.
- Use alternate-position views as a source of distinctions.
