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 .
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 37-59 are rejected under 35 U.S.C. 103 as being unpatentable over Worley et al. (WO 02/059414) as evidenced by CN 106930000.
Regarding claims 37, 40-43, 50, 52-54, 57, Worley et al. teaches an article of footwear [Abstract and 0013] comprising a knitted textile comprising a yarn comprising a core yarn (yarns of substrate layer including a knitted textile [0014]) comprising a core material and a foam comprising thermoplastic material in direct contact with and at least partially surrounding the core yarn and defining at least part of an external surface of the yarn [shown in the Figures]. Worley et al. teach it is known to use open celled and closed cell foams and teaches maintaining permeability and the coating regions forming structures and therefore it would have been obvious to one of ordinary skill in the art to ensure the foamed areas were open cell multicellular foam in order to control the properties of the foam including permeability and structure and arrive at the claimed invention [0019 and 0023]. The multicellular foam comprises thermoplastic material including polyurethane for example [0048 and 0055]. The textile comprises a first multicellular foamed portion defining a first surface texture and a second multicellular foamed portion defining a second surface texture different from the first surface texture (Worley et al. teach the strips of structures of foamed coating can be different shapes, widths, and have different spacing.) [0018]. The first multicellular foamed portion and the second multicellular foamed portion form at least an outer facing surface of the article of footwear [Figures]. The first multicellular foamed portion is distinct in size and/or shape and/or spacing as compared to the second multicellular foamed portion as stated above and 0038 teaches the coating regions can have different shapes. Worley et al. teaches the multicellular foam extends through a pocket and an interior within the knitted textile and would form a cushioning [0017 and 0021]. The multicellular foam is exposed at one or more foamed areas on a surface of the knitted textile that forms part of an outer facing surface of the article of footwear [Figures]. The thermoplastic polymer comprises at least one thermoplastic polymer and at least one crosslinking agent. The cited art is silent regarding the crosslinking agent being thermally activated. However, given the limited number of options and thermally activated crosslinking agent are well known in the art, it would have been obvious to one of ordinary skill in the art to arrive at thermally activating the crosslinking agent and arrive at the claimed invention. The multicellular foam comprises a crosslinked foam [0055 and 0058].
Regarding claim 38, the first multicellular foam comprises at least one thermoplastic polymer and at least one foamed portion comprises a plurality of exposed foamed areas each comprising the multicellular foam (can be construed as a portion of the coated regions in Fig. 3).
Regarding claims 39, 51 and 58, Although Worley et al. does not disclose process of inlaying, it is noted that “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process”, In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) . Further, “although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious difference between the claimed product and the prior art product”, In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir.1983). See MPEP 2113. Therefore, absent evidence of criticality regarding the presently claimed process and given that Worley et al. meets the requirements of the claimed footwear, Worley et al. clearly meet the requirements of present claims footwear.
Regarding claims 44-45 and 56, the core yarn has a deformation temperature that is at least 20 degrees Celsius greater than a melting temperature of the thermoplastic material [Example which show acrylic thermoplastic and polyester core yarn]. The core yarn has a softening temperature that is at least 5 degrees Celsius above a melting temperature of the thermoplastic material [Example which show acrylic thermoplastic and polyester core yarn].
Regarding claim 46, Worley et al. teach fabric including synthetic fibers, but is silent regarding the claimed second thermoplastic material. However, it is well known in the old art of making fabric to include a blend of synthetic thermoplastic fibers including blending the taught polyester with a polyolefin for example in order to tailor the properties of the fabric as is well known in the art and evidenced by CN 106930000.
Regarding claim 47, the thermoplastic material comprises a crosslinking agent [0050].
Regarding claim 48, the cited art is silent regarding the elongation. However, given Worley et al. teach varied uses of the fabric and tailoring the properties, it would have been obvious to one of ordinary skill in the art to have an elongation in the claimed range in order to reduce fabric strength and create more stability and arrive at the claimed invention.
Regarding claim 49, the cited art is silent regarding the breaking strength. However, given Worley et al. teach varied uses of the fabric and tailoring the properties, it would have been obvious to one of ordinary skill in the art to have a breaking strength in the claimed range in order to improve fabric strength and arrive at the claimed invention.
Regarding claim 59, the multicellular foam that is exposed on the surface of the knitted textile sits at a greater height than part of the surface of the knitted textile without the multicellular foam [Figures].
Response to Arguments
Applicant’s arguments with respect to the claims have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
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/Shawn Mckinnon/Examiner, Art Unit 1789