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 .
Status of Claims
This Office Action is in response to the amendment filed 2/2/26. As directed by the amendment, claims 1 24, 25 and 26, have been amended; claims 14-21, 23 are cancelled. Claims 1-7 and 22, 24-26, are pending in this application.
CLAIM INTERPRETATION
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
Use of the word “means” (or “step for”) in a claim with functional language creates a rebuttable presumption that the claim element is to be treated in accordance with 35 U.S.C. § 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that § 112(f) (pre-AIA § 112, sixth paragraph) is invoked is rebutted when the function is recited with sufficient structure, material, or acts within the claim itself to entirely perform the recited function.
Absence of the word “means” (or “step for”) in a claim creates a rebuttable presumption that the claim element is not to be treated in accordance with 35 U.S.C. § 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that § 112(f) (pre-AIA § 112, sixth paragraph) is not invoked is rebutted when the claim element recites function but fails to recite sufficiently definite structure, material or acts to perform that function.
Claim elements in this application that use the word “means” (or “step for”) are presumed to invoke § 112(f) except as otherwise indicated in an Office action. Similarly, claim elements that do not use the word “means” (or “step for”) are presumed not to invoke § 112(f) except as otherwise indicated in an Office action.
In the instant case there does not appear to be any means for language in the claims and/or language to be considered under 35 U.S.C. 112(f).
Claim Rejections - 35 USC § 103 AIA
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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 of this title, 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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1, 2 and 4-7, 22 and 26 are rejected under 35 U.S.C. 103 as being unpatentable over Orvitz US 20090119947 A1 (herein after Orvitz) in view of Cheskin US 20070033834 A1 (herein after Cheskin) and Chung WO 2018190539 A1 (herein after Chung).
Regarding claim 1, Orvitz discloses a footbed assembly comprising: a footbed (Abstract, paragraph 0041, 0044, 0065 and 0072 – footbed as defined in Merriam Websters as an insole) including an elastomeric foam (paragraph 0041, 0044, 0065 and 0072); (Abstract); an arch cookie (as seen in annotated Figure 3) including a heel portion (30); a pair of arch supports (34) extending from the heel portion toward a toe region (as seen in annotated Figure 3), the pair of arch supports being of unequal length (as seen in annotated Figure 3), and being only attached to one another via the heel portion (30, as seen in annotated Figure 3), the heel portion (30) and the pair of arch supports being continuous (as seen in annotated Figure 3), a non-permanent, removable adhesive (paragraph 0086) for coupling the footbed to the arch cookie (paragraph 0086).
[AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: textbox (A pair of arch supports extending from the heel portion toward a toe region. )][AltContent: arrow][AltContent: textbox (An arch cookie.)][AltContent: arrow][AltContent: arrow][AltContent: textbox (The heel portion and the pair of arch supports being continuous.)][AltContent: arrow][AltContent: textbox (The pair of arch supports being of unequal length. )][AltContent: textbox (A heel portion. )]
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Orvitz is silent to at least one window defining a perimeter and being disposed in at least one of the heel portion, at least one window defining a perimeter and being disposed in the pair of arch supports, and the at least one window being configured to receive the elastomeric foam of the footbed so that the perimeter entirely circumscribes the elastomeric foam when the elastomeric foam protrudes therethrough, the footbed including an elastomeric foam, the footbed having a generally flat foot contacting upper surface, and a lower surface opposite the upper surface, the lower surface having discrete foam pillars projecting from the lower surface in selected areas; the at least one window being configured to receive the foam pillars elastomeric foam of the footbed so that the perimeter entirely circumscribes the foam pillars elastomeric foam.
Cheskin discloses at least one window (60, as seen in annotated Figure 4) defining a perimeter and being disposed in at least one of the heel portion (as seen in annotated Figure 4), at least one window defining a perimeter (50- the slots being the window – opening in which 52 the foam padding is inserted) and being disposed in the pair of arch supports (as seen in annotated Figures 1, 2 and 3), and the at least one window being configured to receive the elastomeric foam (paragraph 0020 and 0024) of the footbed (22) so that the perimeter (slots 50 and protrusions 52 extend through the slot) entirely circumscribes the elastomeric foam (as seen in annotated Figures 1, 2 and 3) when the elastomeric foam protrudes therethrough (as seen in annotated Figures 1, 2 and 3) a bottom of each of the discrete foam pillars being aligned with a bottom of the arch cookie (as seen in annotated Figures 1, 2 and 3); the footbed including an elastomeric foam (paragraphs 0020 and 0024), the footbed having a generally flat foot contacting upper surface (as seen in annotated Figure 1, 2 and 3), and a lower surface opposite the upper surface (as seen in annotated Figures 1, 2 and 3), the lower surface having discrete foam pillars projecting from the lower surface in selected areas (as seen in annotated Figures 1, 2 and 3); the at least one window having a second cross- sectional shape that corresponds to the first cross-sectional shape (50, as seen in annotated Figures 1, 2 and 3) and that is configured to receive the foam pillars elastomeric foam of the footbed (52, paragraphs 0020 and 0024, as seen in annotated Figures 1, 2 and 3) so that the perimeter entirely circumscribes the foam pillars elastomeric foam (as seen in annotated Figures 1, 2 and 3).
[AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: textbox (The at least one window being configured to receive the elastomeric foam of the footbed so that the perimeter entirely circumscribes the elastomeric foam when the elastomeric foam protrudes therethrough.)][AltContent: textbox (At least one window defining a perimeter and being disposed in the pair of arch supports.)][AltContent: textbox (At least one window defining a perimeter and being disposed in at least one of the heel portion.)]
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[AltContent: arrow]
[AltContent: arrow][AltContent: arrow]
[AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: textbox (Foam pillars.)][AltContent: arrow][AltContent: textbox (Elastomeric foam footbed)][AltContent: arrow]
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Orvitz is analogous art to the claimed invention as it relates to devices to support the arch. Cheskin is analogous art to the claimed invention in that it provides windows being in the arch support.
It would have been obvious to one having ordinary skill in the art before the effective filing date
of the invention to have modified the arch cookie of Orvitz, by constructing the window in the heel region, the at least one window defining a perimeter disposed in the pair of arch supports, the at least one window being configured to receive the elastomeric foam of the footbed so that the perimeter entirely circumscribes the elastomeric foam when the elastomeric foam protrudes therethrough as taught by Cheskin in order to allow the arch cookie to adapt to the shape of the foot and sole structure, and be securely attached to the footbed. The modification of the arch cookie would be a simple modification to obtain predictable results; allowing the arch support to be secured to the footbed assembly and adapt to the shoe and foot of the wearer when worn.
Orvitz and Cheskin are silent to each of the foam pillars having a first cross-sectional shape with a first width closer to the lower surface and a second width farther from the lower surface, the second width being greater than the first width.
Chung discloses each of the foam pillars having a first cross-sectional shape with a first width closer to the lower surface (as seen in annotated Figures 1b and 1c) and a second width farther from the lower surface (as seen in annotated Figures 1b and 1c), the second width being greater than the first width (as seen in annotated Figures 1b and 1c).
[AltContent: connector][AltContent: arrow][AltContent: textbox (Second width.)][AltContent: arrow][AltContent: connector][AltContent: textbox (First width.)][AltContent: ][AltContent: ]
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Chung is analogous art to the claimed invention in that they relate to sole assemblies.
It would have been obvious to one having ordinary skill in the art before the effective filing date
of the invention to have modified each of the foam pillars of Orvitz and Cheskin by constructing the pillars having a first width closer to the lower surface and a second width farther from the lower surface, the second width being greater than the first width as taught by Chung, in order to provide stability and better cure the portions of the sole assembly together. The modification would be a simple modification to, improve the comfort and stability of the footbed assembly within the shoe.
Regarding claim 2, the modified arch cookie for use in a footwear assembly of the combined references discloses wherein the heel portion (30 of Orvitz) and the pair of arch supports (as seen in annotated Figure 3 of Orvitz) comprise a same material (paragraph 0041 of Orvitz).
Regarding claim 4, the modified arch cookie for use in a footwear assembly of the combined references discloses wherein the heel portion and the pair of arch supports comprise a material having a rigidity (paragraph 0041 of Orvitz) of between 0.01 to 4.5 GPa.
While Orvitz teaches the heel and arch portions being made of a material having a certain rigidity, it does not disclose the rigidity being between 0.01 to 4.5 GPa. It would be obvious to one of ordinary skill in the art to use a material with a rigidity between 0.01 to 4.5 GPa to provide the necessary amount of support and impact absorption to the heel and arch regions, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only ordinary skill in the art. In re Aller, 105 USPQ 233.
Regarding claim 5, the modified arch cookie for use in a footwear assembly of the combined references discloses wherein the at least one window comprises a plurality of windows (50 and 60 of Cheskin) disposed in the heel portion (as seen in annotated Figures 1, 2 and 3 of Cheskin)
Regarding claim 6, the modified arch cookie for use in a footwear assembly of the combined references discloses wherein the at least one window (50, paragraph 0024 - 50 of Cheskin being a series of windows in the arch portion and windows are defined by Merriam Webster as an opening such as a slot, and an opening in a wall for letting in light or air) comprises multiple windows in at least one of the arch supports (50 as seen in annotated Figure 3 of Cheskin).
[AltContent: arrow][AltContent: textbox (Multiple windows in one of the arch support.)][AltContent: oval][AltContent: textbox (Medial side arch)][AltContent: arrow]
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Regarding claim 7, the modified arch cookie for use in a footwear assembly of the combined references discloses wherein the at least one window (as seen in annotated Figure 5 of Cheskin– the window being the perimeter around the multiple openings) comprises multiple windows (60 and 62 of Cheskin) in the heel portion (as seen in annotated Figures 1, 2 and 3 of Cheskin).
[AltContent: textbox (One window comprises multiple windows (26, 28).)][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow]
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Regarding claim 22, the modified arch cookie for use in a footwear assembly of the combined references wherein the foam pillars (52, paragraphs 0020 and 0024 of Cheskin) are configured to interlock with the at least one window of the arch cookie (as seen in annotated Figures 1, 2 and 3 of Cheskin).
Regarding claim 24, the modified arch cookie for use in a footwear assembly of the combined references wherein each of the foam pillars (as seen in annotated Figures 1b and 1c of Chung) is shaped as an inverted T-shape (as seen in annotated Figures 1b and 1c of Chung) with a widened base disposed away from the lower surface (as seen in annotated Figures 1b and 1c of Chung).
Regarding claim 26, the modified arch cookie for use in a footwear assembly of the combined references wherein the foam pillars (52, paragraphs 0020 and 0024 of Cheskin) are configured to support the footbed (as seen in annotated Figures 1, 2 and 3 of Cheskin) and maintain a same internal volume within a footwear in the presence of the arch cookie (as seen in annotated Figures 1, 2 and 3 of Cheskin) and in an absence of the arch cookie (as seen in annotated Figures 1, 2 and 3 of Cheskin).
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Orvitz US 20090119947 A1 (herein after Orvitz) in view of Cheskin US 20070033834 A1 (herein after Cheskin) and Chung WO 2018190539 A1 (herein after Chung) as applied to claim 1 and further in view of Throneburg US 7082704 B2 (herein after Throneburg).
Regarding claim 3, the arch cookie for use in a footwear assembly of the combined references discloses all the limitations of claim 3 except they do not disclose wherein the heel portion and the pair of arch supports comprise EVA.
Throneburg discloses wherein the heel portion and the pair of arch supports (Col 1, lines 49-67 Col 2, lines 1-3 and Col 6, lines 50-67 and Col 7, lines 1-13) comprise EVA (Col 1, lines 49-67 Col 2, lines 1-3 and Col 6, lines 50-67 and Col 7, lines 1-13).
Throneburg is analogous art to the claimed invention in that it relates to footwear having a support component for the heel and arch.
It would have been obvious to one having ordinary skill in the art before the effective filing date
of the invention to have modified the arch support of Orvitz, Cheskin and Chung, with the heel portion and the pair of arch supports comprising EVA, as taught by Throneburg in order to form an arch support that is flexible and resilient. The modification of materials used to make the arch support would be a simple modification of one known element for another to obtain predictable results, an arch support that provides support and is comfortable to wear.
Claim 25 is rejected under 35 U.S.C. 103 as being unpatentable over Orvitz US 20090119947 A1 (herein after Orvitz) in view of Cheskin US 20070033834 A1 (herein after Cheskin) and Chung WO 2018190539 A1 (herein after Chung) as applied to claim 1 and further in view of Dalton US 20040118017 A1 (herein after Dalton).
Regarding claim 25, the arch cookie for use in a footwear assembly of the combined references discloses all the limitations of claim 25 except they do not disclose wherein the foam pillars are confined to a selected area opposite the arch cookie.
Dalton discloses wherein the foam pillars (30, as seen in annotated Figures 2 and 3) are confined to a selected area opposite the arch cookie (as seen in annotated Figures 2 and 3).
[AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: textbox (The foam pillars are confined to the selected area opposite the arch cookie.)]
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Dalton is analogous art to the claimed invention in that they relate to footbed assemblies.
It would have been obvious to one having ordinary skill in the art before the effective filing date
of the invention to have modified the foam pillars of Orvitz, Cheskin and Chung by constructing the pillars are confined to the selected area opposite the arch cookie as taught by Dalton, in order to provide support and secure the sole portions together where increased impacts and strain on the footbed would occur during wear. The modification would be a simple modification to ensure the footbed assembly is held in place within the shoe and is held securely together.
Response to Arguments
Applicant’s arguments have been fully considered but are not convincing. Applicant’s arguments are directed towards structural elements included in the amended claims and thus do not apply to the combinations of references used to teach the limitations of the amended claims in the current rejection and/or the manner in which prior art has been applied in the current rejection. In view of Applicant's amendments, the search has been updated, and a rejection on the amended claims is applied above.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CATHERINE M FERREIRA whose telephone number is (571)270-5916, fax number (571) 270-6916. The examiner can normally be reached on Monday - Thursday 9:00 am- 5:00 pm.
If attempts to reach the examiner by telephone are unsuccessful, please contact the examiner’s supervisor, ALISSA J. TOMPKINS at (571) 272-3425. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Catherine M. Ferreira/
Examiner, Art Unit 3732
/ALISSA J TOMPKINS/Supervisory Patent Examiner, Art Unit 3732
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