Response to Office Action

PTO Form 1957 (Rev 9/2005)

OMB No. 0651-0050 (Exp. 04/2009)

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PTO Form 1957 (Rev 9/2005)

OMB No. 0651-0050 (Exp. 04/2009)

Response to Office Action

To the Commissioner for Trademarks:

Application serial no. 76174504 SUMMIT has been amended as follows:

EVIDENCE
Evidence in the nature of Applicant's locking retainer, as referenced in Attorney's arguments has been attached.
Original PDF file:
evi_2062077720-201109949_._scans3134_000.pdf
Converted PDF file(s) (1 page)
Evidence-1

CLASSIFICATION AND LISTING OF GOODS/SERVICES
Applicant hereby deletes the following class of goods/services from the application.
Class 040 for locking retainers for external artificial limbs which replace arms, hands, legs or feet

Applicant hereby adds the following class of goods/services to the application:
New: Class 010 (Original Class: 040 ) for locking retainers for prosthetic sockets for artificial legs
Filing Basis: Section 1(b), Intent to Use: The applicant has a bona fide intention to use or use through the applicant's related company or licensee the mark in commerce on or in connection with the identified goods and/or services as of the filing date of the application. (15 U.S.C. Section 1051(b)).

ADDITIONAL STATEMENTS
Applicant requests reconsideration and further examination of this application. Applicant has hereby amended the classification of goods to Class 10. Also, Applicant has amended the description of goods as entered. Respectfully, Applicant traverses the Examiner's 2(d) refusal, especially in view of the current amendment to the description of goods. First, it is clear that Applicant's amended description and the description of the cited Registration No.: 3,165,517 do not overlap. In the '517 Registration, all of the devices/instruments/apparatus of the description are modified by the terms "implantation of orthopaedic". Therefore, clearly all the structures of the cited registration relate always to internal bones or muscles. This is the result of the terms "implantation" and "orthopaedic". In Applicant's amended description, on the other had, the locking retainers are clearly always external to the body. In fact, Applicant's retainers are not in or even on the body - instead, they are on the socket which receives the residual limb, and to which the artificial limb is attached (see Exhibit 1 attached as Evidence). Therefore, clearly, the two goods descriptions do not overlap. Likewise, the channels of trade do not overlap - sockets for artificial limbs are clearly not in the same commercial realm as "implantable orthopaedic prosthesis". Applicant now believes the application is in condition for allowance and respectfully requests the same.

SIGNATURE(S)
Declaration Signature
If the applicant is seeking registration under Section 1(b) and/or Section 44 of the Trademark Act, the applicant had a bona fide intention to use or use through the applicant's related company or licensee the mark in commerce on or in connection with the identified goods and/or services as of the filing date of the application. 37 C.F.R. Secs. 2.34(a)(2)(i); 2.34 (a)(3)(i); and 2.34(a)(4)(ii). If the applicant is seeking registration under Section 1(a) of the Trademark Act, the mark was in use in commerce on or in connection with the goods or services listed in the application as of the application filing date. 37 C.F.R. Secs. 2.34(a)(1)(i). The undersigned, being hereby warned that willful false statements and the like so made are punishable by fine or imprisonment, or both, under 18 U.S.C. §1001, and that such willful false statements may jeopardize the validity of the application or any resulting registration, declares that he/she is properly authorized to execute this application on behalf of the applicant; he/she believes the applicant to be the owner of the trademark/service mark sought to be registered, or, if the application is being filed under 15 U.S.C. §1051(b), he/she believes applicant to be entitled to use such mark in commerce; to the best of his/her knowledge and belief no other person, firm, corporation, or association has the right to use the mark in commerce, either in the identical form thereof or in such near resemblance thereto as to be likely, when used on or in connection with the goods/services of such other person, to cause confusion, or to cause mistake, or to deceive; that if the original application was submitted unsigned, that all statements in the original application and this submission made of the declaration signer's knowledge are true; and all statements in the original application and this submission made on information and belief are believed to be true.

Signature: /Ken J. Pedersen/      Date: 05/06/2008
Signatory's Name: Ken J. Pedersen
Signatory's Position: Attorney of Record

Response Signature
Signature: /Ken J. Pedersen/     Date: 05/06/2008
Signatory's Name: Ken J. Pedersen
Signatory's Position: Attorney of Record

The signatory has confirmed that he/she is an attorney who is a member in good standing of the bar of the highest court of a U.S. state, which includes the District of Columbia, Puerto Rico, and other federal territories and possessions; and he/she is currently the applicant's attorney or an associate thereof; and to the best of his/her knowledge, if prior to his/her appointment another U.S. attorney or a Canadian attorney/agent not currently associated with his/her company/firm previously represented the applicant in this matter: (1) the applicant has filed or is concurrently filing a signed revocation of or substitute power of attorney with the USPTO; (2) the USPTO has granted the request of the prior representative to withdraw; (3) the applicant has filed a power of attorney appointing him/her in this matter; or (4) the applicant's appointed U.S. attorney or Canadian attorney/agent has filed a power of attorney appointing him/her as an associate attorney in this matter.

        
Serial Number: 76174504
Internet Transmission Date: Tue May 06 20:55:47 EDT 2008
TEAS Stamp: USPTO/ROA-XXX.XXX.XX.XX-2008050620554769
8771-76174504-4202014796305e58908da9c811
a9c7926-N/A-N/A-20080506201109949857