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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 18 September 2026 has been entered.
Response to Amendments
The amendments filed with the written response received on 26 August 2026 have been considered and an action on the merits follows. As directed by the amendment, claim(s) 18-20 is/are canceled, claim(s) 22-23 has/have been added, and claim(s) 6, 14-15, and 17 has/have been withdrawn.
Further, the Examiner is withdrawing newly added claim 23 as being drawn to a non-elected species. In the Response to Election/Restriction of 07 July 2024, Applicant elected Species FPG1 and Subspecies LBS1, which encompass Figures 1-6 of the instant application. Claim 23 recites, “wherein the lasting board includes temporary cross-supports spanning the at least one cutout” which is a feature of non-elected Fig. 13. Therefore claim 23 is withdrawn pursuant to 37 CFR 1.142(b), there being no generic or linking claim.
Accordingly, claim(s) 1-17 and 21-23 is/are pending in this application with an action on the merits to follow regarding claim(s) 1-5, 7-13, 16, and 21-22.
Claim Objections
Claim(s) 9 is/are objected to because of the following informalities:
Claim 9, line 1, should recite, “9. (previously presented)”.
Appropriate correction is required.
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.
Claim(s) 1-5, 7-8, and 21-22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Covatch US 20040181970 in view of Giese US 5575089, in view of Rackiewicz US 20090090023, further in view of Litchfield US 5771606.
Regarding Independent Claim 1, Covatch discloses a shoe (Figs. 1-6 #10; ¶0036; The Examiner notes that the embodiment of Fig. 5 is the embodiment being used as prior art. However, Fig. 5 does not have the reference characters #10/12/22. Figs. 1-3 shows #10/12/22, but the embodiment of Figs. 1-3 is not the embodiment being used as prior art for the claimed invention. Further, Fig. 6 is also not the embodiment being used, however Fig. 6 clearly references the same layered structures of Fig. 5 in detail and thus will be used for clarification purposes,) comprising: a shoe upper (Figs. 1-6 #12; ¶0029); a midsole (Fig. 5 #38; ¶0037) having at least one cavity (Figs. 3 & 5 #22 cavities in forefoot/heel; ¶0037 notes, “shoe 10 having maximum cushioning in heel area 34 by extending hole 22 through first, middle, and second layers, 16, 18, and 20 to bottom point 32 of recess 30, where bottom point 32 is as low in heel 38 as possible without sacrificing structural integrity. This embodiment takes advantage of the space in heel 38 and uses it to maximize a depth of hole 22 and protrusion 46 in heel area 34”) formed in an upper surface thereof (Fig. 5 show the upper surface of the midsole having a cavity; ¶0014); an insole (Fig. 5 #44) having at least one projecting interlocking feature (Applicant’s “projecting interlocking feature” has been interpreted under 35 USC 112(f). Applicant’s “projecting interlocking feature” appears to be a protrusion extending from the bottom surface of the insole [per Applicant Drawings 1-6 #621/622 and Spec ¶0044]; Covatch has a protrusions extending from the bottom surface of the insole, which are the same as the Applicant’s “projecting interlocking feature”; see Fig. 5 #46 forefoot/heel) formed in a lower surface thereof (Figs. 3-4 show the protrusions #46 on the lower surface of the insole #44); the at least one projecting interlocking feature including at least one heel pod (Fig. 5 #46 heel) having an upper surface (Fig. 5 shows the upper surface cross-section) and a lower surface (Fig. 5 #32), and at least one forefoot pod (Fig. 5 #46 forefoot) having an upper surface (Fig. 5 shows the upper surface cross-section) and a lower surface (Fig. 5 shows the lower surface cross-section), the at least one heel pod being thicker than the at least one forefoot pod (Fig. 5); and a first layer (Figs. 1-6 #16; ¶0029, 0033) below the shoe upper (Figs. 1-6), the first layer having at least one cutout (Figs. 3-4 #22 holes in forefoot/heel; ¶0035 notes, “hole 22 passes through first layer 16,”) for accepting the at least one projecting interlocking feature (¶0035 notes, “hole 22 passes through first layer 16…. Protrusion 46 likewise passes through first layer 16,”), the at least one cutout being aligned with the at least one cavity of the midsole (Figs. 3-4; ¶0031, 0033, 0035).
Covatch does not expressly disclose that the upper surface of the at least one heel pod has a curved concavity, and that the first layer is a lasting board comprising textiles or fiber boards, the lasting board being coupled to the shoe upper.
Giese teaches an insole (Figs. 22-26 #82) with a deep heel pod (Fig. 25 #82 cross) that has an upper surface (Figs. 25 #82 upper) with a curved concavity (Fig. 25).
Both Covatch and Giese teach analogous inventions in the art of footwear with insoles that have heel pods. Therefore it would have been obvious to one of ordinary skill in the art prior to the effective filing date to modify Covatch with the teachings of Giese such that the upper surface of the heel pod has a curved concavity so that the insole would be, “pre-shaped to a contour complementary to the bottom surface of the wearer's foot and having an increased height around the periphery of the heel area and in the arch area to form a raised arch support and to provide an irregular contoured upper stabilizing surface for the wearer's foot,” (Giese Abstract).
The modified shoe of Covatch does not expressly disclose that the layer is a lasting board comprising textiles or fiber boards, the lasting board being coupled to the shoe upper.
Rackiewicz teaches a multilayered shoe (Figs. 1-7 #10) with a lasting board (Fig. 7 #54) that is coupled (¶0041) to a shoe upper (Fig. 7 #12).
Both Covatch (as modified by Giese) and Rackiewicz teach analogous inventions in the art of footwear with multilayered soles that include lasting boards. Therefore it would have been obvious to one of ordinary skill in the art prior to the effective filing date to modify Covatch (as modified by Giese) with the teachings of Rackiewicz such that the lasting board would be coupled to the shoe upper to hold the shoe upper in place while the sole is attached, preventing undesirable folds in the shoe upper during the lasting process.
The modified shoe of Covatch does not expressly disclose that the layer is a lasting board comprising textiles or fiber boards.
Litchfield teaches a multilayered shoe sole (Figs. 13-14) with a lasting board (Figs. 13-14 #1314) that is made of fibers or textiles (Col. 10:22-26).
Both Covatch (as modified by Giese and Rackiewicz) and Litchfield teach analogous inventions in the art of footwear with multilayered soles that include lasting boards. Therefore it would have been obvious to one of ordinary skill in the art prior to the effective filing date to modify Covatch (as modified by Giese and Rackiewicz) with the teachings of Litchfield such that the lasting board would be made of fibers or textiles as these materials are well-known and can have “a sufficient hardness to act as a moderator” within the sole (Litchfield Col. 10:50-54). Further, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. See MPEP 2144.07
Regarding Claim 2, the modified shoe of Covatch discloses the shoe of claim 1, wherein the at least one cavity includes two cavities (the at least one projecting interlocking feature includes two projecting interlocking features (Fig. 5 #46 forefoot/heel), and the at least one cutout includes two cutouts (Figs. 3-4 #22 holes forefoot/heel).
Regarding Claim 3, the modified shoe of Covatch discloses the shoe of claim 2, wherein the two projecting interlocking features include a first projecting interlocking feature (Fig. 5 #46 heel) adjacent a heel region (Fig. 5 #34) and a second projecting interlocking feature (Fig. 5 #46 forefoot) adjacent a forefoot region (Fig. 5 #36).
Regarding Claim 4, the modified shoe of Covatch discloses the shoe of claim 3, wherein the first projecting interlocking feature and the second projecting interlocking feature include thicknesses (Covatch Annotated Fig. 5) that are greater than thickness of remaining portions of the insole (Covatch Annotated Fig. 5).
Regarding Claim 5, the modified shoe of Covatch discloses the shoe of claim 3, wherein the first projecting interlocking feature and the second projecting interlocking feature include at least one rectangular-shaped pod (Fig. 5 shows the pods are rectangular shaped).
Regarding Claim 7, the modified shoe of Covatch discloses the shoe of claim 1, wherein the at least one cutout and the at least one cavity have a same perimeter (Figs. 3-5; ¶0031).
Regarding Claim 8, the modified shoe of Covatch discloses the shoe of claim 1, wherein the at least one cavity is configured to accept and mate with the at least one projecting interlocking feature (Figs. 3-5; ¶0031-0037).
Regarding Claim 21, the modified shoe of Covatch discloses the shoe of claim 1, wherein the upper surface of the at least one forefoot pod is flat (Fig. 5).
Regarding Claim 22, the modified shoe of Covatch discloses the shoe of claim 1, wherein the lasting board is disposed between the midsole and the insole (Rackiewicz Fig. 7; ¶0041).
Claim(s) 9-13 and 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Covatch in view of Giese, in view of Rosendahl US 20070101613, further in view of Litchfield.
Regarding Independent Claim 9, Covatch discloses a shoe (Figs. 1-6 #10; ¶0036; The Examiner notes that the embodiment of Fig. 5 is the embodiment being used as prior art. However, Fig. 5 does not have the reference characters #10/12/22. Figs. 1-3 shows #10/12/22, but the embodiment of Figs. 1-3 is not the embodiment being used as prior art for the claimed invention. Further, Fig. 6 is also not the embodiment being used, however Fig. 6 clearly references the same layered structures of Fig. 5 in detail and thus will be used for clarification purposes,) comprising: a midsole (Fig. 5 #38; ¶0037) having at least one cavity (Figs. 3-4 #22 cavities in forefoot/heel; ¶0037 notes, Figs. 3 & 5 #22 cavities in forefoot/heel; ¶0037 notes, “shoe 10 having maximum cushioning in heel area 34 by extending hole 22 through first, middle, and second layers, 16, 18, and 20 to bottom point 32 of recess 30, where bottom point 32 is as low in heel 38 as possible without sacrificing structural integrity. This embodiment takes advantage of the space in heel 38 and uses it to maximize a depth of hole 22 and protrusion 46 in heel area 34”) formed in an upper surface thereof (Fig. 5 shows the upper surface of the midsole having a cavity; ¶0014); an insole (Fig. 5 #44) having at least one projecting interlocking feature (Applicant’s “projecting interlocking feature” has been interpreted under 35 USC 112(f). Applicant’s “projecting interlocking feature” appears to be a protrusion extending from the bottom surface of the insole [per Applicant Drawings 1-6 #621/622 and Spec ¶0044]; Covatch has a protrusions extending from the bottom surface of the insole, which are the same as the Applicant’s “projecting interlocking feature”; see Fig. 5 #46 forefoot/heel) formed in a lower surface thereof (Fig. 5 shows the protrusions #46 on the lower surface of the insole #44), the at least one projecting interlocking feature having a complementary shape (Figs. 3-5) to that of the a least one cavity (Figs. 3-5; ¶0031-0037) and being configured to aligned therewith (¶0035 notes, “hole 22 passes through first layer 16…. Protrusion 46 likewise passes through first layer 16,”), the at least one projecting interlocking feature including at least one heel pod (Fig. 5 #46 heel) having an upper surface (Fig. 5 shows the upper surface cross-section) and a lower surface (Fig. 5 #32), and at least one forefoot pod (Fig. 5 #46 forefoot) having an upper surface (Fig. 5 shows the upper surface cross-section) and a lower surface (Fig. 5 shows the lower surface cross-section), the at least one heel pod being thicker than the at least one forefoot pod (Fig. 5); but does not expressly disclose that the upper surface of the at least one heel pod has a curved concavity, and a lasting board comprising textiles or fiber boards for coupling to a shoe upper, the lasting board being disposed adjacent the midsole, the lasting board having at least one cutout for accepting the at least one projecting interlocking feature, the at least one cutout being aligned with the at least one cavity of the midsole.
Giese teaches an insole (Figs. 22-26 #82) with a deep heel pod (Fig. 25 #82 cross) that has an upper surface (Figs. 25 #82 upper) with a curved concavity (Fig. 25).
Both Covatch and Giese teach analogous inventions in the art of footwear with insoles that have heel pods. Therefore it would have been obvious to one of ordinary skill in the art prior to the effective filing date to modify Covatch with the teachings of Giese such that the upper surface of the heel pod has a curved concavity so that the insole would be, “pre-shaped to a contour complementary to the bottom surface of the wearer's foot and having an increased height around the periphery of the heel area and in the arch area to form a raised arch support and to provide an irregular contoured upper stabilizing surface for the wearer's foot,” (Giese Abstract).
The modified shoe of Covatch does not expressly disclose that the layer is a lasting board that is coupled to the shoe upper.
Rosendahl teaches a multilayered shoe (Fig. 1) with a lasting board (Fig. 1 #14) that is coupled (¶0038-0040) to a shoe upper (Fig. 1 #10), the lasting board being disposed adjacent the midsole (Fig. 1), the lasting board having at least one cutout (¶0040) for accepting the at least one projecting interlocking feature (¶0040), the at least one cutout being aligned with the at least one cavity of the midsole (Fig. 1; ¶0040).
Both Covatch (as modified by Giese) and Rosendahl teach analogous inventions in the art of footwear with multilayered soles that include lasting boards. Therefore it would have been obvious to one of ordinary skill in the art prior to the effective filing date to modify Covatch (as modified by Giese) with the teachings of Rosendahl such that the lasting board would be coupled to the shoe upper and accept the interlocking features in at least one cutout to hold the shoe upper in place while the sole is attached, preventing undesirable folds in the shoe upper and midsole during the lasting process.
The modified shoe of Covatch does not expressly disclose that the layer is a lasting board comprising textiles or fiber boards.
Litchfield teaches a multilayered shoe sole (Figs. 13-14) with a lasting board (Figs. 13-14 #1314) that is made of fibers or textiles (Col. 10:22-26).
Both Covatch (as modified by Giese and Rosendahl) and Litchfield teach analogous inventions in the art of footwear with multilayered soles that include lasting boards. Therefore it would have been obvious to one of ordinary skill in the art prior to the effective filing date to modify Covatch (as modified by Giese and Rosendahl) with the teachings of Litchfield such that the lasting board would be made of fibers or textiles as these materials are well-known and can have “a sufficient hardness to act as a moderator” within the sole (Litchfield Col. 10:50-54). Further, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. See MPEP 2144.07
Regarding Claim 10, the modified shoe of Covatch discloses the shoe of claim 9, wherein the at least one cavity includes two cavities (Fig. 5 #46 forefoot/heel), and the at least one projecting interlocking feature includes two projecting interlocking features (Fig. 5 #46 forefoot/heel).
Regarding Claim 11, the modified shoe of Covatch discloses the shoe of claim 10, wherein the two projecting interlocking features include a first projecting interlocking feature (Fig. 5 #46 heel) adjacent a heel region (Fig. 5 #34) and a second projecting interlocking feature (Fig. 5 #46 forefoot) adjacent a forefoot region (Fig. 5 #36).
Regarding Claim 12, the modified shoe of Covatch discloses the shoe of claim 11, wherein the first projecting interlocking feature and the second projecting interlocking feature include thicknesses (Covatch Annotated Fig. 5) that are greater than thickness of remaining portions of the insole (Covatch Annotated Fig. 5).
Regarding Claim 13, the modified shoe of Covatch discloses the shoe of claim 11, wherein the first projecting interlocking feature and the second projecting interlocking feature include at least one rectangular-shaped pod (Fig. 5 shows the pods are rectangular shaped).
Regarding Claim 16, the modified shoe of Covatch discloses the shoe of claim 9, wherein the at least one cutout and the at least one cavity have a same perimeter (Figs. 3-5; ¶0031).
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Response to Arguments
Applicant’s arguments, filed 26 August 2026, with respect to the 35 USC 103 of claims 1-5, 7-13, 16, and 21 have been considered but are not persuasive.
Regarding independent claims 1 and 9, Applicant argues,
The prior art of Covatch does not teach a lasting board and none of the layers of Covatch are attached to the upper, especially not the first layer #14, and therefore Covatch teaches a fundamentally different approach where cushioning is provided but a lasting board is absent.
The Examiner respectfully disagrees. The claim requires that the lasting board be attached to the upper, not the first layer. When Covatch is modified with Rackiewicz to have a lasting board that is attached to the upper, this deficiency is remedied. See 35 USC 103 rejection of claims 1 and 9 in Final Rejection of 18 June 2026.
Applicant submits that the dependent claims are patentable based on their dependencies from claims 1 and 9; however, as discussed in the rejection below and in the arguments above, claims 1 and 9 are not allowable over the prior art. Therefore, these arguments have not been found convincing and the rejections of the independent claims under 35 U.S.C. 102 and/or 103 have been maintained.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RAQUEL M. WEIS whose telephone number is 571-272-6804. The examiner can normally be reached Mon-Fri: 0800-1700.
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/RAQUEL M. WEIS/Examiner, Art Unit 3732
/HEATHER MANGINE, Ph.D./Primary Examiner, Art Unit 3732
