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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 02/23/2026 has been entered.
Claims 1 and 21 have been amended, and claims 1-19 and 21 remain pending in this application.
Claim Rejections - 35 USC § 103
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 (i.e., changing from AIA to pre-AIA ) 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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1-19 and 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chang et al. (US 2016/0075113), herein Chang, in view of Lyden et al. (US 5,595,004), herein Lyden, and Kitano et al. (US 2014/0096882), herein Kitano.
Regarding claim 1, Chang discloses an article of footwear (10) having a forefoot region, a midfoot region, and a heel region along a longitudinal axis of the article of footwear, the article of footwear comprising: an upper (12); and a sole structure (14) including a bladder (28e), wherein the bladder includes a bulbous portion (curved edge portion as in Fig. 3; or rear portion as in Fig. 15, 16), and wherein the bladder comprises at least a first multi-layered film having a plurality of gas-barrier layers (barrier microlayers) and a plurality of elastomeric layers (TPU microlayers), wherein the gas-barrier layers alternate with the elastomeric layers (paragraphs 0041, 0043-0048, 0059, 0077-0078, 0081; Fig. 1-3, 15, 16, 20).
Chang does not disclose that the bulbous portion protrudes beyond the rear and/or sides of the article of footwear. Lyden teaches an article of footwear having a sole structure with a midsole chassis (9), a bladder (100) with a bulbous portion, and an outsole (7) disposed on an exterior surface of the chassis (Fig. 2a, 2e). The bulbous portion protrudes beyond the rear and/or sides of the article of footwear (wherein the bulbous portion extends beyond at least outsole and chassis; Fig. 2a). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide the bladder of Chang within the sole such that the bulbous portion extends beyond the rear and/or sides of the article of footwear, as taught by Lyden, in order to provide a different cushioning characteristic and aesthetic appeal to the footwear, allowing the user to see the cushioning elements of the sole.
Chang and Lyden do not disclose the specific distance that the bulbous portion extends. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to make the bulbous portion extend more than 3 millimeters, in order to provide a bladder with sufficient cushioning and support for the heel of the user. The claimed values are merely an optimum or workable range. 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 routine skill in the art. In re Aller, 105 USPQ 233.
Chang and Lyden do not specifically disclose that the bulbous portion has a first height in an uncompressed state and a second height in a compressed state, the second height being less than 86 percent of the first height. However, Chang discloses a bladder formed from a flexible membrane filled with a gas, and which provides a cushioning function to a shoe sole. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention that the bladder of Chang has a first height in an uncompressed state and a second height in a compressed state, the second height being less than 86 percent of the first height, allowing for adequate cushioning and support of the foot of the wearer.
Chang does not specifically disclose that the bulbous portion of the bladder exhibits little to no cracking after at least 350,000 KIM cycles. However, Chang does disclose a bladder formed with films having the same structure and materials as claimed (paragraphs 0043-0044, 0048, 0059). Further, Kitano teaches an air bladder having alternating gas-barrier layers (2) and elastomeric layers (3). Each gas barrier layer has a thickness which may be in the range of about 0.01 to 0.75 micrometers (paragraph 0046; Table 1, Example 4). Each elastomeric layer has an average thickness which may be in the range of about 2 to 8 micrometers (paragraph 0046; Table 1, Examples 1-8). Kitano further teaches that a ratio of the thickness of the elastomeric layers is preferably 80% or more, which improves the fatigue (crack) resistance of the multilayer structure (paragraphs 0040-0041). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide alternating elastomeric layers and gas-barrier layers with a ratio of thickness of 80% or more, including an average thickness of the gas-barrier layers of less than or equal to 0.75 micrometers (such as 0.5 micrometers), to improve the fatigue/crack resistance of the bladder.
Kitano teaches that the ratio of the thickness of the elastomeric layers improves fatigue resistance (paragraphs 0040-0041), but Chang, Lyden, and Kitano do not specifically disclose that the bladder exhibits little to no cracking after at least 350,000 KIM cycles. However, it is noted that the recitation of “the bulbous portion of the bladder exhibits little to no cracking after at least 350,000 KIM cycles” is a functional limitation. It is well settled that it is possible for functional language to define structure, but that where no distinguishing structure has been defined, the limitation is not patentable and is fully met by the reference. See In re Swinehart, 169 USPQ 226. See also General Electric v. United States, 198 USPQ 73 which further reinforced the concept that functional language which defines no structure cannot distinguish over the prior art. The combination of Chang, Lyden, and Kitano discloses the structure as claimed and therefore would have a reasonable expectation of performing such function. See MPEP 2173.05(g).
Regarding claim 2, Chang and Lyden disclose that the bulbous portion of the bladder is a bulbous heel portion, and is in a heel region of the article of footwear (Lyden; Fig. 2a).
Regarding claim 3, Chang discloses that the bladder comprises a second multi-layered film, wherein a structure of the second multi-layered film differs from a structure of the first multi-layered film in number of gas-barrier layers and elastomeric layers, or differs in thickness of gas-barrier layers and elastomeric layers, or differs in both number and thickness of gas-barrier layers and elastomeric layers (Fig. 3).
Regarding claim 4, Chang discloses that the plurality of gas-barrier layers of the first multi-layered film comprises at least 20 gas-barrier layers (paragraph 0044).
Regarding claim 5, Chang discloses that the first multi-layered film, an average total thickness of the plurality of gas-barrier layers and the plurality of elastomeric layers is less than 200 micrometers (paragraphs 0043-0044).
Regarding claims 6 and 7, Chang, Lyden, and Kitano do not disclose the specific first and second heights. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to make the first height in the range of about 10 to about 24 mm, and the second height in the range of about 8.6 to about 13.6 mm, in order to provide a bladder with sufficient cushioning and support for the foot of the user. The claimed values are merely an optimum or workable range. 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 routine skill in the art. In re Aller, 105 USPQ 233.
Regarding claim 8 and 9, Chang discloses that the gas-barrier material of the multi-layered film comprises or consists essentially of one or more gas-barrier polymers, such as thermoplastic polyvinylidene chloride polymers or ethylene-vinyl alcohol copolymers (paragraph 0059).
Regarding claims 10 and 11, Chang discloses that the elastomeric material is one or more thermoplastic elastomeric polymers, such as thermoplastic elastomeric polyurethane (paragraph 0048).
Regarding claims 12 and 13, Chang, Lyden, and Kitano disclose that the bulbous portion extends a distance beyond a biteline of the article of footwear, but do not disclose the specific difference in distances between the compressed and uncompressed states. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to make a difference between a first distance and a second distance range from about 1.0 to about 3.0 mm, or about 1.1 to about 1.9 mm, or about 1.1 to about 1.5 mm, in order to provide a bladder with sufficient cushioning and support for the foot of the user. The claimed values are merely an optimum or workable range. 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 routine skill in the art. In re Aller, 105 USPQ 233.
Regarding claim 14, Chang discloses a midsole chassis disposed between the upper and the bladder (Fig. 1).
Regarding claim 15, Chang discloses an outsole, but does not specifically disclose that the outsole is disposed on an exterior surface of the bladder. Lyden teaches an article of footwear having a sole structure with a midsole chassis (9), a bladder (100) with a bulbous portion, and an outsole (7) disposed on an exterior surface of the chassis (Fig. 2a, 2e). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide the outsole on an exterior surface of the bladder, as taught by Lyden, in order to provide a complete sole which supports and cushions the foot.
Regarding claim 16, Lyden teaches that the bulbous portion is a bulbous heel portion, a geometry of the bulbous heel portion in the uncompressed state defines a first vector extending from a rearward-most point of the uncompressed bulbous heel portion to a rearward-most point of the midsole chassis, and a second vector extending from the rearward-most point of the uncompressed bulbous heel portion to a rearward-most point of the outsole (Fig. 2a), but does not disclose the specific angle between the two vectors. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the first vector and the second vector extend from each other at an angle ranging from about 115.0 degrees to about 137.5 degrees, in order to provide sufficient cushioning at the heel of the shoe. The claimed values are merely an optimum or workable range. 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 routine skill in the art. In re Aller, 105 USPQ 233.
Regarding claim 17, a geometry of the bulbous heel portion in the compressed state would define a third vector extending from a rearward-most point of the compressed bulbous heel portion to the rearward-most point of the midsole chassis, and a fourth vector extending from the rearward-most point of the compressed bulbous heel portion to the rearward-most point of the outsole with a smaller angle than the uncompressed state, but Chang and Lyden do not disclose the specific angle. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the third vector and the fourth vector extend from each other at an angle ranging from about 38 degrees to about 107 degrees, in order to provide sufficient cushioning at the heel of the shoe in the compressed state. The claimed values are merely an optimum or workable range. 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 routine skill in the art. In re Aller, 105 USPQ 233.
Regarding claim 18, Chang discloses a fluid retained within the bladder (paragraph 0078).
Regarding claim 19, Chang discloses an initial internal pressure (paragraph 0081), but does not specifically disclose a range of about 20 psi to about 22 psi. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to make an initial internal pressure in a range of about 20 psi to about 22 psi, in order to provide a bladder with sufficient cushioning and support for the foot of the user. The claimed values are merely an optimum or workable range. 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 routine skill in the art. In re Aller, 105 USPQ 233.
Regarding claim 21, Chang discloses an article of footwear sole structure, the article of footwear sole structure comprising: a sole structure (14) including a bladder (28e), wherein the bladder includes a bulbous portion (curved edge portion as in Fig. 3; or rear portion as in Fig. 15, 16), wherein the bladder comprises at least a first multi-layered film having a plurality of gas-barrier layers (barrier microlayers) and a plurality of elastomeric layers (TPU microlayers), wherein the gas-barrier layers alternate with the elastomeric layers (paragraphs 0041, 0043-0048, 0059, 0077-0078, 0081; Fig. 1-3, 15, 16, 20).
Chang does not disclose that the bulbous portion protrudes beyond the rear and/or sides of the article of footwear. Lyden teaches an article of footwear having a sole structure with a midsole chassis (9), a bladder (100) with a bulbous portion, and an outsole (7) disposed on an exterior surface of the chassis (Fig. 2a, 2e). The bulbous portion protrudes beyond the rear and/or sides of the article of footwear (wherein the bulbous portion extends beyond at least outsole and chassis; Fig. 2a). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide the bladder of Chang within the sole such that the bulbous portion extends beyond the rear and/or sides of the article of footwear, as taught by Lyden, in order to provide a different cushioning characteristic and aesthetic appeal to the footwear, allowing the user to see the cushioning elements of the sole.
Lyden teaches that the bulbous portion is a bulbous heel portion, a geometry of the bulbous heel portion in the uncompressed state defines a first vector extending from a rearward-most point of the uncompressed bulbous heel portion to a rearward-most point of the midsole chassis, and a second vector extending from the rearward-most point of the uncompressed bulbous heel portion to a rearward-most point of the outsole (Fig. 2a), but does not disclose the specific angle between the two vectors. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the first vector and the second vector extend from each other at an angle ranging from about 115.0 degrees to about 137.5 degrees, in order to provide sufficient cushioning at the heel of the shoe. The claimed values are merely an optimum or workable range. 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 routine skill in the art. In re Aller, 105 USPQ 233.
Chang and Lyden do not disclose the specific distance that the bulbous portion extends. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to make the bulbous portion extend more than 3 millimeters, in order to provide a bladder with sufficient cushioning and support for the heel of the user. The claimed values are merely an optimum or workable range. 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 routine skill in the art. In re Aller, 105 USPQ 233.
Chang does not specifically disclose that the bulbous portion of the bladder exhibits cracking affecting less than 20 percent of the multi-layer film after at least 350,000 KIM cycles. However, Chang does disclose a bladder formed with films having the same structure and materials as claimed (paragraphs 0043-0044, 0048, 0059). Further, Kitano teaches an air bladder having alternating gas-barrier layers (2) and elastomeric layers (3). Each gas barrier layer has a thickness which may be in the range of about 0.01 to 0.75 micrometers (paragraph 0046; Table 1, Example 4). Each elastomeric layer has an average thickness which may be in the range of about 2 to 8 micrometers (paragraph 0046; Table 1, Examples 1-8). Kitano further teaches that a ratio of the thickness of the elastomeric layers is preferably 80% or more, which improves the fatigue (crack) resistance of the multilayer structure (paragraphs 0040-0041). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide alternating elastomeric layers and gas-barrier layers with a ratio of thickness of 80% or more, including an average thickness of the gas-barrier layers of less than or equal to 0.75 micrometers (such as 0.5 micrometers), to improve the fatigue/crack resistance of the bladder.
Kitano teaches that the ratio of the thickness of the elastomeric layers improves fatigue resistance (paragraphs 0040-0041), but Chang, Lyden, and Kitano do not specifically disclose that the bladder exhibits cracking affecting less than 20 percent of the multi-layer film after at least 350,000 KIM cycles. However, it is noted that the recitation of “the bulbous portion of the bladder exhibits cracking affecting less than 20 percent of the multi-layer film after at least 350,000 KIM cycles” is a functional limitation. It is well settled that it is possible for functional language to define structure, but that where no distinguishing structure has been defined, the limitation is not patentable and is fully met by the reference. See In re Swinehart, 169 USPQ 226. See also General Electric v. United States, 198 USPQ 73 which further reinforced the concept that functional language which defines no structure cannot distinguish over the prior art. The combination of Chang, Lyden, and Kitano discloses the structure as claimed and therefore would have a reasonable expectation of performing such function. See MPEP 2173.05(g).
Response to Arguments
Applicant's arguments filed 02/23/2026 have been fully considered but they are not persuasive.
Applicant argues that amended claim 1 ties KIM cycle performance to a specific structure not taught by the prior art. However, as seen in the rejection above, the prior art teaches each element of the structure cited by Applicant, including the gas-barrier layers each having an average thickness of less than or equal to 0.75 micrometers. Even if the KIM cycle limitation is a measurable outcome of recited structure, the prior art teaches such structure. Therefore, the combination of Chang, Lyden, and Kitano would have a reasonable expectation of performing such function, as previously stated.
Applicant argues that the specification establishes a nexus between the less than or equal to 0.75 micrometer structural limitation and the KIM cycle performance test that is absent from the prior art. Applicant further argues that neither Chang, Lyden, nor Kitano contemplates KIM cycle testing, and therefore cannot teach or suggest the structural combination of the claimed thickness and bulbous geometry as a means of achieving the claimed KIM cycle performance. However, the combination of Chang, Lyden, and Kitano does teach all of the structural claimed limitations (as seen in the 35 USC 103 rejection above). The recitation of “the bulbous portion of the bladder exhibits cracking affecting less than 20 percent of the multi-layer film after at least 350,000 KIM cycles” remains a functional limitation. It is well settled that it is possible for functional language to define structure, but that where no distinguishing structure has been defined, the limitation is not patentable and is fully met by the reference. See In re Swinehart, 169 USPQ 226. See also General Electric v. United States, 198 USPQ 73 which further reinforced the concept that functional language which defines no structure cannot distinguish over the prior art. The combination of Chang, Lyden, and Kitano discloses the structure as claimed and therefore would have a reasonable expectation of performing such function. See MPEP 2173.05(g).
Applicant argues that the prior art does not disclose the claimed structure, specifically the combination of the less than or equal to 0.75 micrometer barrier layer thickness and the bulbous footwear bladder geometry. However, Chang clearly discloses a bulbous footwear bladder geometry (see at least Fig. 15) and a barrier layer thickness of less than or equal to 0.75 micrometers (paragraph 0043).
Conclusion
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/SHARON M PRANGE/ Primary Examiner, Art Unit 3732
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