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 Zhang et al. (CN 208354726) in view of Yamana et al. (JP2018087391).
Regarding claims 37, 40, 43, 50, 52, 55 and 57, Zhang et al. teaches an article of footwear comprising a knitted textile material forming an outer surface of an article of footwear (104). Zhang et al. is silent regarding the specifics of the textile, but teach it as being anti-static. However, Yamana teaches an anti-static material comprising a textile material comprising a yarn comprising a core material and a multicellular foam in direct contact with [0009] and fully surround the core yarn and defining at least a part of an external surface of the yarn in order to provide antistatic and cushioning and breathability properties (Yamana teaches “An aqueous resin emulsion containing a conductive agent and thermally expandable microcapsules is applied to the surface of the double raschel knitted fabric and / or the knitting yarn surface constituting the mesh structure. The coating amount is appropriately adjusted so that the emulsion is sufficiently adhered to the knitting yarn surface and the aqueous resin emulsion does not flow on the back surface. In addition, this coating may be performed on the entire surface and / or the entire back surface (of course, it is not applied to the watermark), or it may be partially applied in a striped pattern or a staggered pattern.”). The expandable microspheres are the blowing agent. The multicellular foam comprises a thermoplastic material including thermoplastic polyurethane [0015]. The textile comprises a first foamed multicellular foam portion defining a first surface texture and a second foamed multicellular foam portion defining a second surface texture wherein the first foamed multicellular foam portion and the second multicellular foamed portion form at least a part of an outer facing surface of the article of footwear and the first multicellular foam portion and second foamed multicellular foam portion are distinct in size, shape and/or spacing (Yamana et al. states “A foamed synthetic resin film is a synthetic resin film that has air bubbles inside. The bubbles may be formed in any way, but it is particularly preferable to form them by using thermally expandable microcapsules and expanding them. In other words, by heating the thermally expandable microcapsules, the outer shell of the microcapsules expands, causing the inside of the expanded microcapsules to become a bubble. Furthermore, even if the microcapsules expand and their outer shells rupture, if the encapsulated gas remains in the synthetic resin film, it will form bubbles.” and “Furthermore, when the drying temperature exceeds 140°C, the expansion of thermally expandable microcapsules precedes the film formation by the aqueous resin emulsion, resulting in a tendency for the film surface to become pitted.”. Therefore, it is clear that bubbles are foam and can occur anywhere including at the surface and create areas of pits areas of non-pits and thus meet the claimed first texture and second texture. It is noted that although Yamana teaches to set the temperature at 140 or lower to avoid pits, Yamana plainly states “…even if the microcapsules expand and their outer shells rupture, if the encapsulated gas remains in the synthetic resin film, it will form bubbles” and teaches pitting can occur and one of ordinary skill in the art would recognize that various textures and sizes are created upon expansion of the microspheres.
The coating extends through the double Rachel fabric and therefore extends through a pocket within the knitted textile as cushioning. The multicellular foam is exposed at a plurality of areas on a surface of the knitted textile that forms a part of an outer facing surface of the article of footwear.
The plurality of foamed areas on the surface of the knitted textile comprise a first texture one or more areas on the surface of the knitted textile without the multicellular foam comprises a second texture that is different from the first texture. Yamana teaches areas without the foam.
The multicellular foam extends through an interior of the knitted textile and
is exposed at one or more areas on a surface of the knitted textile and the surface of the knitted
textile forms part of an outer-facing surface of the article of footwear. The thermoplastic material comprises at least one thermoplastic polymer and at least one thermally-activated cross-linking agent [0026].
It would have been obvious to one of ordinary skill in the art to use the knitted textile with foam, the configuration and specifics of the textile of Yamana et al. in Zhang et al. in order to provide antistatic and cushioning and breathability properties and arrive at the claimed invention.
Regarding claim 38, the previous combination is relied upon as set forth in the rejection of claim 37. Zhang et al. are silent regarding the claimed plurality of exposed foam areas. However. Yamana et al. teaches the first multicellular foamed portion comprises a plurality of exposed foam areas with each comprising multicellular foam in order to create an expanded foam with conductivity and cushioning. The plurality of first multicellular foamed portions can be construed either as a portion of the foam with the indents from the bubble expansion, the portion of the foam without the indents from bubble expansion, raised portions of the foam from bubble expansion or portions of the houndstooth pattern which are taught in certain areas of the fabric. It would have been obvious to one of ordinary skill in the art to use the open celled foam of Yamana et al. in Zhang et al. in order to created an expanded foam with conductivity and cushioning and arrive at the claimed invention.
Regarding claims 39, 51 and 58, Although the previous combination does not disclose the inlaying process, 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 inlaying process and given that the previous combination meets the requirements of the claimed article, the previous combination clearly meet the requirements of present claims article.
Regarding claims 41, 47 and 53, the previous combination is relied upon as set forth in the rejection of claim 37. Zhang et al. are silent regarding the claimed foam being crosslinked. However. Yamana et al. teaches addition of a crosslinking agent for crosslinking and therefore teaches a crosslinked foam in order to create a conductive layer with cushioning and improved mechanical properties. It would have been obvious to one of ordinary skill in the art to use the crosslinked foam of Yamana et al. in Zhang et al. in order to improve the mechanical properties of the foam including strength and provide conductivity and cushioning and arrive at the claimed invention.
Regarding claims 42 and 54, The previous combination is silent regarding the claimed foam being open celled. However, Yamana et al. teaches the multicellular foam and teaches the importance of permeability and breathabilility. Therefore, it would have been obvious to one of ordinary skill to use an open celled multicellular foam in order to provide improved permeability and breathability and arrive at the claimed invention based upon the teachings of Yamana. It would have been obvious for one of ordinary skill in the art to use the teachings of Yamana and obviousness of an open celled foam in Zhang et al. in order to improve breathability and permeability and arrive at the claimed invention.
Regarding claims 44-46 and 56, The previous combination is silent regarding the claimed core and sheath specifics. However, Yamana et al. teaches the core yarn has a deformation temperature that is at least 20 degrees Celsius greater than a melting temperature of the thermoplastic material [0008 and 0015 show acrylic thermoplastic as the sheath (foam portion) and polyester core yarn] in order to provide adequate strength. The core yarn has a softening temperature that is at least 5 degrees Celsius above a melting temperature of the thermoplastic material in order to provide adequate strength [0008 and 0015 which show acrylic thermoplastic foam portion and polyester core yarn]. The core comprises a second thermoplastic material including polyester in order to provide binder fiber. The core is taught as having a core and sheath formation [0008]. It would have been obvious to one of ordinary skill in the art at the time of the invention to use the core and sheath specifics taught by Yamana et al. in Zhang et al. in order to provide adequate strength and binder fiber and arrive at the claimed invention.
Regarding claim 48, the previous combination is silent regarding the claimed elongation of the core. However, given the teachings of the cited art of a footwear article and the level of ordinary skill in the art which it is known to desire and tailor elongation of the core in an upper in order to provide structure to the shoe, it would have been obvious to one of ordinary skill in the art to arrive at the claimed elongation in order to tailor elongation of the core in an upper in order to provide structure to the shoe.
Regarding claim 49, the previous combination is silent regarding the claimed breaking strength of the core. However, given the teachings of the cited art of a footwear article and the level of ordinary skill in the art which it is known to desire and tailor breaking strength in an upper in order to provide strength to the shoe, it would have been obvious to one of ordinary skill in the art to arrive at the claimed breaking strength in order to tailor strength in an upper in order to provide strength to the shoe.
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 as Yamana teaches the foamed synthetic resin film expands vertically.
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
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/Shawn Mckinnon/Examiner, Art Unit 1789
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