The entire prosecution history can be viewed by those interested in the details on the PTO website. USPTO Public Pair Portal. The record shows that on 2/21/2007, the Patent Office did reject the then-pending claim to a pet collar with the LIVESTRONG marking, citing to evidence of LAF's prior use of the design on its web-site. The record also shows that in response to this rejection, the applicant cancelled two figures and renumberd one so as to claim the BARKSTRONG marking instead of the LIVESTRONG marking.
The only patent that Mr. Ohlman's complaint alleges has been infringed is United States Design Patent No. D556,389. Mr. Ohman filed the original application that gave rise to this patent on July 6, 2005. The application number was 29/233,646. In the application, he tried to obtain claims to pet collars with three different marks: Fig. 1 - LIVESTRONG; Fig. 2 - BARKSTRONG; and Fig. 3 PURRSTRONG.
On 5/21/2007, in response to the rejection by the Patent Office, the applicant submitted an amendment, in which he cancelled the LIVESTRONG and PURRSTRONG drawings from the application, and changed "FIG. 2" for BARKSTRONG to "FIG. 1." The applicant's stated reason for this change was that "[t]he Office Action objected to the specification, claim, and drawings due to informalities." See Response at 5. The response made no mention of the pending 103 rejection.
The claim to the BARKSTRONG design was then allowed. On 10/2/2007, before the patent issued, Mr. Ohman appears to have filed two continuing applications, numbered 29/292,189 and 29/292,189.
In his comment to yesterday's post, Mr. Ohman notes that there is "no mention or claim of the divisional patent (LIVESTRONG) in this suit." Technically, that statement is true. The only patent asserted in the lawsuit Mr. Ohman filed against the Lance Armstrong Foundation is the one claiming the "BARKSTRONG" design. The two continuing applications filed on 10/2/2007, presumably one of which is the divisional application referred to by Mr. Ohman, have not issued as patents and are not currently available to the public. However, Mr. Ohman's reference to a "divisional patent (LIVESTRONG)" implies that he is presently seeking to obtain a design patent for the "LIVESTRONG" design. Because no such patent has issued, there is of course no such patent at issue in Mr. Ohman's current lawsuit.