DETAILED ACTION
Notice of Pre-AIA 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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on February 2, 2026 has been entered.
Claims 6-11, 15, and 21-32 are currently pending in the above identified application.
Election/Restrictions
Newly submitted claims 26-32 are directed to an invention that is independent or distinct from the invention originally claimed for the following reasons: Claims 26-32 (Invention II) are directed towards an article of footwear whereas claims 6-11, 15, and 21-25 (Invention I) are directed towards an upper. Inventions II and I are related as combination and subcombination. Inventions in this relationship are distinct if it can be shown that (1) the combination as claimed does not require the particulars of the subcombination as claimed for patentability, and (2) that the subcombination has utility by itself or in other combinations (MPEP § 806.05(c)). In the instant case, the combination as claimed does not require the particulars of the subcombination as claimed because the combination requires an upper comprising a knitted textile forming at least apportion of an outer-facing surface of the supper, the knitted textile comprising a knitted structure comprising a plurality of loops, and a foamed yarn incorporated into the knit structure, the foamed yarn comprising a core and a muti-cellular foam at least partially expanded outwards form the core, the multi-cellular foam exposed on the outer-facing surface, wherein the multi-cellular foam forms a plurality of distinct foam shapes on the portion of the outer-facing surface of the upper. The subcombination requires an upper comprising a knitted textile comprising a surface, wherein a first yarn is inlaid in the knitted textile or interloped with a second yarn in the knitted textile, the first yarn comprising a multicellular foam at least partially surrounding and attached to a core yarn, the core yarn comprising a plurality of fibers or filaments, each of the plurality of fiber or filaments comprising a core material, wherein the surface comprises a plurality of discrete foamed areas each comprising the multicellular foam, wherein at least some of the plurality of discrete foamed areas include foamed portions comprising multiple shapes, wherein the multicellular foam comprises a first polymeric material comprising a polyurethane, a polyolefin, a polyether, a polyamide, or any combination. The combination does not require a second yarn, the core yarn comprising a plurality of fibers or filaments each comprising a core material, the plurality of discrete foamed areas including foamed portion comprising multiple shape and does not specify the multicellular foam material as comprising a polyurethane, a polyolefin, a polyether, a polyamide, or any combination thereof. The subcombination has separate utility such as in a garment or cushion within upholstery.
The examiner has required restriction between combination and subcombination inventions. Where applicant elects a subcombination, and claims thereto are subsequently found allowable, any claim(s) depending from or otherwise requiring all the limitations of the allowable subcombination will be examined for patentability in accordance with 37 CFR 1.104. See MPEP § 821.04(a). Applicant is advised that if any claim presented in a divisional application is anticipated by, or includes all the limitations of, a claim that is allowable in the present application, such claim may be subject to provisional statutory and/or nonstatutory double patenting rejections over the claims of the instant application.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claims 26-32 are withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
Claims 26-32 stand withdrawn from consideration as being directed towards the non-elected invention.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 6-11, 15, and 21-25 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Specifically, the full scope of the claim limitations “wherein the surface comprises a plurality of discrete foamed areas each comprising the multicellular foam; wherein at least some of the plurality of discrete foamed areas include foamed portions comprising multiple shapes” (claim 6), “wherein the knitted textile further comprise an additional yarn that is exposed on the surface of the knitted textile” (claim 11), “wherein the surface comprises a first portion of the multicellular foam forming a first surface texture and a second portion of the multicellular foam forming a second surface texture; and wherein the first surface texture and the second surface texture each comprise a plurality of discrete foamed areas; and wherein at least some of the plurality of discrete foamed areas comprises foamed protrusions that form different shapes on the surface” (claim 22), “wherein at least some of the foamed protrusion of the first surface texture are spaced-apart differently compared to at least some of the foamed protrusion of the second surface texture” (claim 23”, “wherein at least some of the foamed protrusion of the first surface texture are equally spaced from each other” (claim 24), and “wherein at least some of the foamed protrusion of the plurality of discrete foamed areas of the first surface texture are extended outward from the surface and at least some of the foamed protrusions of the plurality of discrete foamed areas of the first surface texture are recessed in the surface” (claim 25).
Applicant points to support for the amendments in para 0081-0085, Fig. 2A, 2S, 2F, and Fig. 8 of the originally filed specification as providing support. There is no explicit support in the originally filed disclosure for the claim limitations. The only mention of “discrete” in the originally filed disclosure is with regards to Fig. 5 and stating “the foamed areas 22 mat be discrete at the surface, creating a ridged or dotted texture” (see par 0089 of published application). The paragraph also states “[i]n still other embodiments, such as the one exemplified in FIG. 8, the foamed textile 200 may have a variety of foamed areas 220 creating a variety of surface features. These may include abstract designs, symbols, or other depictions, decorative textures, or functional textures.” This does not support the full scope of the claim encompassing multiple shapes, of any design, or different shapes, of any design. There is no discussion of the spacing of the surface texture. Para 0081 teaches “[t]he foamed textile 200 further comprises a first surface having a first surface texture, and a second surface, having a second surface texture, and at least one intermeshing region 220 where foam 210 and un-foamed textile 120 are interconnected. The first and second surface textures may or may not be similar. For example, the first surface may include foamed areas in which the foamed area has a greater height (i.e., sits proud of) the surrounding textile, and the second surface may be substantially flat.” This appears to refer to the upper surface and lower surface, not across the same surface. Para 0084 teaches “the foamed areas being discrete at the surface, creating a ridged or dotted texture…the foamed textile 200 may have a variety of foamed areas 220 creating a variety of surface feature. These may include abstract designs, symbols, or other depictions, decorative textures, or functional textures.” This is different form “plurality of discrete foamed areas include foamed portions comprising multiple shapes” or “the first surface texture and the second surface texture each comprises a plurality of discrete foamed areas; and wherein at least some of the plurality of discrete foamed areas comprise foamed protrusions that form different shapes on the surface.” While the teachings can be within the scope, the full breadth of the claims is not supported by the originally filed disclosure and therefore introduces new matter.
Regarding limitation “wherein the knitted textile further comprise an additional yarn that is exposed on the surface of the knitted textile,” claim 6, upon which claim 11 depends, already claims a first yarn and second yarn. The additional yarn now positively recites three different yarns. Support for a yarn being exposed on the surface of the knitted textile is found with regards to the second yarn being exposed on the surface of the knitted textile in original claim 11 and paragraphs 0133 and 0240 of the published application. There is not a third yarn discussed in conjunction with this limitation. Original claim 11 and preceding aspect only recite a first yarn. Therefore, the claim introduces new matter.
To overcome this rejection, applicant may attempt to demonstrate that the original disclosure establishes that he or she was in possession of the amended claim or modify this limitation to align with the specific teachings of the originally filed disclosure.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 25 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 25 recites the limitation “wherein at least some of the foamed protrusion of the plurality of discrete foamed areas of the first surface texture are extended outward from the surface and at least some of the foamed protrusions of the plurality of discrete foamed areas of the first surface are recessed in the surface.” It is unclear how a protrusion can be recessed in a surface. Recess is an antonym of protrusion as evidenced by Merriam-Webster (see Protrusion, Antonyms).
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 6-9 and 22-24 are rejected under 35 U.S.C. 103 as being unpatentable over US Pub. No. 2017/0121854 to Van der Gaag in view of USPN 3,389,446 to Parrish and US Pub. No. 2008/0050575 to Park.
Regarding claims 6-9 and 22-24, Van der Gaag teaches a footwear (article of footwear) comprising foamed fabric (textile), including knitted, comprising filaments of closed-cell foam (multicellular foam) of a cross-linked polymeric material (first polymeric material), including polyethylene (polyolefin) (Van der Gaag, abstract, para 0007, 0015, 0018, 0031). Van der Gaag teaches the filament can be single filament or multifilament (Id., para 0009), reading on the yarn being a multifilament yarn which would necessarily having a plurality of fiber or filaments. Van der Gaag teaches the polymeric material being chemically cross-linked (claim 8) using an appropriate chemical cross-linking agent (Id., para 0010) and the cross-linking occurring after the integration of the filaments into the fabric (Id., para 0012). Van der Gaag teaches the foamable polymeric material using a chemical blowing agent adapted to foam at a given foaming temperature (Id., para 0013), reading on the unfoamed coating comprising a chemical blowing agent and the fist polymeric material (claim 7) including degradation products of a chemical blowing agent. Van der Gaag teaches the use of additional fibers and the filament being combined with the foamable polymer filaments as multifilaments (Id., para 0016), reading on the textile further comprising a second yarn and the second yarn being exposed on a first surface of the textile (claim 11). Van der Gaag teaches the foam being formed form an unfoamed coating comprising a foamable polymeric material (first thermoplastic material) including polyethylene, a crosslinking agent, and a chemical blowing agent, the chemical agent being present in the foamable polymeric material in an amount effective to foam the unfoamed coating into the foam (claim 6, 9) (Id., para 0007-0014, 0018). Van der Gaag teaches the foamable filament being integrated into the fabric in any appropriate manner including by knitting (Id., para 0015), reading on a knitted textile having a first coated yarn inlaid or interloped with a second yarn in the knitted textile. Van der Gaag teaches the fabric being used in any appropriate produce, including footwear (Id., para 0031). Van Der Gaag teaches the fabric comprising fiber of non-foamed material (Id., 0022, claim 18). In order to form a fabric, foamed yarn would necessarily be inlaid or interloped with the non-foamed (second) yarn. Otherwise, the yarns would not be within the fabric and be separate and discrete materials. Van der Gaag teaches the woven precursor textile being sufficiently loose that is can easily deform or drape to follow the contours of a mould then being subjected to heat treatment to expand the foam filaments and form foam arches with the textile retaining its shape and provided cushioning and good ventilation (Id., para 0056). Van der Gaag teaches fabric elements of may be different shapes and forms can be formed (Id.). Van der Gaag teaches the fabric having the ability to protect, cushion, or resist shock (Id., para 0025
Van der Gaag does not teach the foamed filament comprising a core yarn with the closed cell foam at least partially surrounding and attached to the core yarn, wherein the core yarn comprising a plurality of fibers or filaments, each of the plurality of fiber or filament comprising a core material.
However, Parrish teaches a foam fabric that forms a fabric while the cells of the foam are collapsed then re-inflating the filaments (Parrish, abstract, col. 1 lines 10-19). Parrish teaches when dense yarn and microcellular filament are to be combined in a fabric construction, it can be preferred to use sheath-core filaments in which the core is a dense yarn and the sheath is the microcellular foam, especially when the microcellular filament without a core is too weak to withstand stresses of fabric formation or it is aesthetically or chemically desirable to cover the yarn (Id., col. 3 lines 10-19). Parrish teaches collapse microcellular filaments being superior to inflated filaments for weaving knitting due to their significantly higher tensile strength (Id., col. 3 lines 40-45). Parrish teaches the surface of collapsed microcellular filament having much less frictional resistance to sliding than the surfaces of inflated foam filaments which facilitates weaving (Id., col. 3 lines 49-55).
It would have been obvious to one of ordinary skill in the art before the effective filing date to form the upper of Van der Gaag, wherein the filament further comprising a dense yarn, such as of multifilament, surrounded by the foam as taught by Parrish, motivated by the desire of using conventionally known foam containing filaments and yarn types predictably suitable for use in foamed fabrics and taught as suitable for the filament type and by the desire to impart strength to the filament and durability to the filament when being formed into a fabric as well as based on the desired aesthetic or chemical needs.
The prior art combination does not explicitly teach a plurality of discrete foamed areas ach comprising the multicellular foam wherein at least some of the plurality of discrete foamed area include foamed portions comprising multiple shapes (claim 6), including a first surface texture and the second surface texture each comprising a plurality of discrete foamed areas and wherein at least some of the plurality of discrete foamed area comprises foamed protrusion that form different shapes on the surface (claim 22) and at least some of the foamed protrusion of the first surface texture are spaced-apart differently compared to at least some of the foamed protrusion of the second surface texture (claim 23) or equally spaced from each other in the first surface texture (claim 24).
However, Park teaches an upper for a shoe comprising a textile 1921 with a foam structure formed by the third, thirteenth and fifteenth embodiment (Park, para 0205-0210, Fig 19a-19e) and can include various letters and logo (Id., para 0224), reading on a plurality of discrete foamed areas including foamed portions comprising multiple shapes. Park teaches the foam can be made in various designs, sizes and structure to have desired properties (Id., para 0239).
It would have been obvious to one of ordinary skill in the art before the effective filing date to form the upper of the prior art combination, wherein the upper contain a foam structure design of Park, motivated by the desire of forming conventionally known structures predictably suitable for use on upper and by the desire to impart design and desired properties to the upper. Additionally, the limitations plurality of discrete foamed area include foamed portions comprising multiple shapes (claim 6), including a first surface texture and the second surface texture each comprising a plurality of discrete foamed areas and wherein at least some of the plurality of discrete foamed area comprises foamed protrusion that form different shapes on the surface (claim 22) and at least some of the foamed protrusion of the first surface texture are spaced-apart differently compared to at least some of the foamed protrusion of the second surface texture (claim 23) or equally spaced from each other in the first surface texture (claim 24) are related to the design and aesthetic of the upper. The court found that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art. See In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947).
Claims 6-7, 15, and 22-24 are rejected under 35 U.S.C. 103 as being unpatentable over US Pub. No. 2013/0276333 to Wawrousek in view of US Pub. No. 2015/0059209 to Dekovic.
Regarding claims 6-7, 15, and 22-24, Wawrousek teaches an upper of an article of footwear comprising at least one fabric layer (textile) including a knitted fabric layer, comprising a foamed polymeric material (multicellular foam) that expands into gaps between the fibers of the fabric and fixedly setting in the fabric (Wawrousek, para 0008, 0048-0049, 0065), reading on the foamed polymeric material at least partially surrounding and attached to the fibers of the fabric (core yarn). Wawrousek teaches the foamed polymeric material being formed from foaming an unfoamed polymeric material comprising polyethylene (polyolefin), chlorinated polyethylene (polyolefin), polyurethane, or thermoplastic polyurethane (first polymeric material) in add to at least one blowing agent, including a chemical blowing agent (Id., para 0006-0011, 0051), reading on the foam being the product of processing an unfoamed coating at least partially surrounding the fibers of the fabric (core yarn) to expand the unfoamed coating in the multicellular foam and the foamed polymeric material comprising the degradation product of a chemical blowing agent. Wawrousek teaches the fabric can be knitted, woven, or nonwoven, including a tricot fabric or three-dimensional mesh fabric, and is formed from natural and/or man-made material (core material) (Id., para 0054), reading on the fabric being a knitted fabric comprising a first coated fiber (yarn) necessarily inlaid in the knitted textile or interloped with a second fiber (yarn) in the knitted textile, the first coated yarn comprising the foamed coating. Wawrousek teaches the material comprising foamed element, including circular, oval, triangular, square, rectangular or polygonal cross-section or having more complex shape such as letters (Id., para 0067) and teaches the second mold cavity having any appropriate size and/or shape (Id., para 0077, 0082, 0055), reading discrete foamed area each comprising the multicellular foam, having foamed areas having greater height than surrounding areas of the knitted textile (claim 15). Wawrousek teaches the foam providing protective elements or padding (Id., para 0048). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to form the textile of Wawrousek, wherein the foam elements are selected, such to have multiple shapes (claim 6) or different size and/or shape and/or spacing, based on the desired aesthetic and properties of the resultant properties as being opening to different shape and taught as influencing the properties of the resultant textile, absent evidence of unexpected results. This reads on at least some of the plurality of discrete foamed areas include foamed portions comprising multiple shapes (claim 6), a first portion of the multicellular foam forming a first surface texture and a second portion of the multicellular foam forming a second surface texture, where each comprising a plurality of discrete foamed areas and at least some of the foamed areas comprising foamed protrusion that form different shapes on the surface (claim 22), at least some of the foamed protrusion of the first surface texture are spaced-apart differently compared to at least some of the foamed protrusion of the second surface texture (claim 23), and at least some of the foamed protrusion of the first surface texture are equally spaced from each other (claim 24). Additionally, these features appear to be directed towards the aesthetic of the upper. The court found that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art. See In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947).
Wawrousek does not specifically teach the fabric fibers being in the form of yarn comprising a plurality of fibers or filaments.
However, Dekovic teaches a show comprising an upper that includes a knitted component, wherein the yarn forming the knitted component may be a multifilament yarn (Dekovic, abstract, para 0038, 0058, Fig. 5). It would have been obvious to one of ordinary skill in the art before the effective filing date to form the upper of the prior art combination, wherein the yarn knitted form the fabric is a multifilament yarn as taught by Dekovic, motivated by the desire of using conventionally known yarn predictably suitable for use in knitted component used in show uppers. Therefore the foamed coated yarn reads on the first coated yarn inlaid in the knitted textile or interloped with a second yarn in the knitted textile. The second yarn structure has not been specified and the second yarn being the same type of yarn is within the scope of the claim. Additionally, Dekovic teaches the use of varying yarn type in the knitted component based on the desired properties (Id., para 0041). It would have been obvious to one of ordinary skill in the art before the effective filing date to form the knitted fabric of the prior art combination, wherein a first yarn and second yarn are knitted, and therefore interloped to form an integral knitted structure, as is conventionally known for knitted uppers and based on the desired properties of the knitted structure as taught by Dekovic.
Regarding claim 7, the prior art combination teaches the blowing agent being introduced into the unfoamed polymeric material prior to foaming so as to provide a means of foaming the polymeric material (Wawrousek, para 0050), reading on the chemical blowing agent being present in the first thermoplastic material. The prior art combination teaches the polymeric material (foamed coating) comprising a thermoplastic (first thermoplastic material) including thermoplastic polyolefin and thermoplastic polyurethane and at least one blowing agent, including a chemical blowing agent (Id., para 0006-0007, 0051).
The prior art combination teaches the material comprising foamed element, including circular, oval, triangular, square, rectangular or polygonal cross-section or having more complex shape such as letters (Wawrousek, para 0067), reading on the foamed element having a shape that is a representative shape (claim 15). The foamed areas being at least three regularly spaced or periodically arranged relative to each other or randomly dispersed is a matter of design choice and aesthetic. It would have been obvious to one having ordinary skill in the art at the time the invention was made to have the foamed elements be arranged such that at least three regularly spaced or periodically arranged relative to each other or randomly dispersed, since there is no invention in merely changing the shape or form of an article without changing its function except in a design patent. Eskimo Pie Corp. v. Levous et al., 3 USPQ 23.
Claims 8-9 are rejected under 35 U.S.C. 103 as being unpatentable over US Pub. No. 2013/0276333 to Wawrousek in view of US Pub. No. 2015/0059209 to Dekovic, as applied to claims 6-7, 15, and 22-24 above, further in view of US Pub. No. 2017/0121854 to van der Gaag.
Regarding claims 8-9, the prior art combination teaches the unfoamed polymeric material comprising polymers, elastomer, and thermoplastic including polyethylene and polyurethane (Wawrousek, para 0006).
The prior art combination does not explicitly teach the foamed polymeric material comprising a cross-linked polymeric material.
However, Van der Gaag teaches a footwear (article of footwear) comprising foamed fabric (textile) comprising filaments of closed-cell foam (multicellular foam) of a cross-linked polymeric material (first polymeric material), including polyethylene (polyolefin) (Van der Gaag, abstract, para 0007, 0018, 0031). Van der Gaag teaches the foam being a closed-cell foam of cross-linked polymeric material and teaches that crosslinking is believed to prevent macroscopic melting of the fiber during foaming and the network formed prevent gases produced during foaming from freely escaping (Id., abstract, para 0010).
It would have been obvious to one of ordinary skill in the art before the effective filing date to form the upper of the prior art combination, wherein the polyethylene is crosslinked using a crosslinking agent as taught by Van der Gaag, motivated by the desire of forming conventionally known foam containing polyethylene predictably suitable for use in filaments contained in footwear and by the desire to prevent macroscopic melting during foaming and prevent gases produced during foaming from freely escaping.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over US Pub. No. 2013/0276333 to Wawrousek in view of US Pub. No. 2015/0059209 to Dekovic, as applied to claims 6-7, 15, and 22-24 above, further in view of US Pub. No. 2013/0192086 to Tawney.
Regarding claim 10, the prior art combination teaches the foamed polymeric material being formed from foaming an unfoamed polymeric material, including polyurethane or thermoplastic polyurethane (first polymeric material) (Wawrousek, para 0006-0011, 0051).
The prior art combination is silent with regards to the hardness of the foam, specifically being from about 30 to about 60 as measured by an Asker C durometer.
However, Tawney teaches a shoe comprising a foam, such as a polyurethane foam that has a hardness ranging from 35-60 Asker C, including as part the shoe upper (Tawney, Fig. 1a-1c, para 0078, 0075). It would have been obvious to one of ordinary skill in the art before the effective filing date to form the upper of the prior art combination, wherein the polyurethane foam has a hardness of 35-60 Asker C as taught by Tawney, motivated by the desire of using conventionally known polyurethane foam hardness predictably suitable for use components of shoe, including on uppers.
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over US Pub. No. 2013/0276333 to Wawrousek in view of US Pub. No. 2015/0059209 to Dekovic, as applied to claims 6-7, 15, and 22-25 above, further in view of US Pub. No. 2007/0048523 to Pollet.
Regarding claim 21, the prior art combination does not explicitly teach a second polymeric material that forms an outer layer of the first coated yarn.
However, Pollet teaches a composite yarn comprising a filament yarn of organic material and a matrix of polymer material that includes at least one foam polymer that is further coated or extruded with a second polymer material matrix (Pollet, abstract, Fig. 2), reading on a second polymer material that forms an outer layer of a coated yarn that contains a multicellular foam. Pollet teaches the composite yarn being suitable for all types of textile structures, including knitted textile structures (Id., para 0001, 0115). Pollet teaches the foaming system comprising a blowing agent (Id., para 0021-0027). Pollet teaches the composite yarn comprising fiber or filaments of polyolefins, polyesters, polyamide, polyvinyls and acrylic (Id., para 0033). Pollet teaches the second matrix formed around the core including chlorinated polymer silicones, polyurethanes, acrylics, polyolefin, ethylene/vinyl acetate copolymer. And polytetrafluoroethylene (Id., para 0041). Pollet teaches the mechanical properties being improved by the use of the foamed polymeric material (Id., par 0074).
It would have been obvious to one of ordinary skill in the art before the effective filing date to form the upper of the prior art, wherein the foamed polymeric material is the composite yarn of Pollet, motivated by the desire of using conventionally known yarn material containing foamed components predictably suitable for use in textiles, such as knitted textile, and by the desire of ensuring improved mechanical properties.
Response to Arguments
Applicant's arguments filed June 17, 2025 have been fully considered but they are not persuasive with regards to the new matter rejection or the prior art rejection involving Wawrousek. US Pub. No. 2008/0050575 to Park is relied upon for teaching foamed designs on an upper for modification with Van der Gaag.
Applicant argues that amendment to claims 6 and 22 are supported in para 0081, 0084, and Fig. 2A, 2D, 2F, and Fig. 8 of the originally filed disclosure. However, as discussed above, while the teachings are within the scope of the amendment, the teachings do not support the totality of the scope of the claim.
Applicant argues that Wawrousek does not disclose any plurality of foamed areas on a surface that are distinct in size and/or shape and/or spacing. Examiner respectfully disagrees. Wawrousek teaches the material comprising foamed element, including circular, oval, triangular, square, rectangular or polygonal cross-section or having more complex shape such as letters (Id., para 0067) and teaches the second mold cavity having any appropriate size and/or shape (Id., para 0077, 0082, 00055). Wawrousek teaches the foam providing protective elements or padding (Id., para 0048). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to form the textile of Wawrousek, wherein the foam elements are selected, such to have different size and/or shape and/or spacing, based on the desired aesthetic and properties of the resultant properties as being opening to different shape and taught as influencing the properties of the resultant textile, absent evidence of unexpected results. Additionally, the distinct size, shape, and spacing is a feature with regards to the aesthetic of the upper. The court found that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art. See In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947). Therefore, Examiner maintains the rejection detailing Wawrousek above.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. USPN 3,464,934 to Birkett teaches selectively expanded plastic article comprising a backing including a fabric and an expandable mix formed on the backing with an ink applied to for lower expansion in selected areas.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNIFER ANN GILLETT whose telephone number is (571)270-0556. The examiner can normally be reached 7 AM- 4:30 PM EST M-H.
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/JENNIFER A GILLETT/Examiner, Art Unit 1789
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