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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 06/29/2026 has been entered.
Claim Rejections - 35 USC § 102
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 following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1 and 4-10 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Elbaz et al (US 20130196829 A1).
Regarding Claim 1, Elbaz et al teaches a footwear 10 comprising: a vamp 18,20; an insole 12 (inside) defining, in combination with an inner surface of the vamp 18,20, a foot accommodating Volume of Treatment (VOTf) (Refer to Fig. 1,2 Paragraph [0095]:” In another embodiment, the methods are directed to treating a lower limb pathology that is treatable according to the invention by differential muscle tuning. In another embodiment, the methods are directed to treating a lower limb pathology that is at least partially treatable (may involve additional treatments that are known to one of skill in the art (surgery, medication, etc.)) according to the invention by differential muscle tuning. “… [0152]:” In another embodiment, footwear 10 is attached to a foot of a user by means of a boot 18 and/or fasteners 20, such as but not limited to, VELCRO straps, buckles, shoe laces, and the like. In another embodiment, footwear 10 is attached to a foot of a user by means of a shoe. In another embodiment, a shoe comprises a platform of a sneaker. In another embodiment, the term sneaker comprises a boot. In another embodiment, the term sneaker comprises a walking boot. In another embodiment, a shoe comprises a platform of a running shoe. In another embodiment, a shoe comprises a platform of an elegant shoe. In another embodiment, a shoe comprises a platform of a walking shoe or boot. Each possibility represents a separate embodiment of the present invention.”); and an outsole 12,24 coupled to at least one protuberance 22, so that when the footwear is in use, the at least one protuberance 22 provides a Point of Contact (POC) 26 (Refer to Fig. 2 Paragraph [0155] In another embodiment, each protuberance 22 has a curved outer contour 26. In another embodiment, each protuberance has a different curved outer contour. In another embodiment, each protuberance 22 has a convexity.”..The Office takes the position that the contour 26 contains the POC) with a floor surface, said POC being orthogonally distanced from a surface of the outsole (Refer to Fig. 2 Paragraph [0158]-[0159]:” [0159] In another embodiment, at least two bulbous protuberances 22 protrude from a lower surface 24 of support member 12. In another embodiment, only two bulbous protuberances 22 protrude from a lower surface 24 of support member 12. In another embodiment, a lower surface of support member is an outsole.”), said at least one protuberance 22 being movable relative to the surface of the outsole within a predefined protuberance translation zone (Refer to annotated Fig. 9 below Paragraph [0192]) to provide different levels of disturbance, when the footwear is in use (Refer to Figs. 11,12 Paragraph [00161]:” a protuberance as described herein is movable along the outer surface of the outsole. In another embodiment, a protuberance as described herein can be positioned within the outer surface of the support member.”.. [0162] In another embodiment, a protuberance as described herein is movable or translatable such as in a track (e.g., forwards, backwards, sideways or diagonally) and/or rotatable about its own or other axis, or a combination of such motions. Each possibility represents a separate embodiment of the present invention); wherein said vamp 18,20 and insole 12 are configured to provide, when the footwear is in use, dimensions of said VOTf in a three-dimensional space such that (The Office takes the position that when the user uses the device it is provided in three-dimensional space), within a maximal range of movement 406,407 of said at least one protuberance 22, said POC is positioned in a predefined position directly below a predefined treatment zone of the VOTf (Refer to Fig. 9-12 Paragraph [0192]:” Front rail 404 and rear rail 405 are used for anchoring the protuberance. The area bordered by dotted line 406 marks the maximal area within which the peak surface of the anterior protuberance, i.e. the ground engaging surface of the anterior protuberance, may be located, according to some embodiments of the present invention. The area bordered by dotted line 407 marks the maximal area within which the peak surface of the posterior protuberance. Each possibility represents a separate embodiment of the present invention.”), said predefined treatment zone being selected from a group consisting of:(i) a toe spring zone; (ii) a zone between a ball girth and a waist girth; and (iii) a zone between the waist girth and a short heel girth (Refer to annotated Fig. 9 below).
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Regarding Claim 4, Elbaz et al continues to teach wherein said POC 26 at the maximal range of movement 406,407 of said at least one protuberance 22 on a plane generally parallel to a surface of said outsole delineate a zone of a maximal range of movement of said POC (Refer to Fig. 9 Paragraph [0192]:” The area bordered by dotted line 406 marks the maximal area within which the peak surface of the anterior protuberance, i.e. the ground engaging surface of the anterior protuberance, may be located, according to some embodiments of the present invention. The area bordered by dotted line 407 marks the maximal area within which the peak surface of the posterior protuberance. Each possibility represents a separate embodiment of the present invention.”).
Regarding Claim 5, Elbaz et al continues to teach wherein said zone of the maximal range of movement 406,407 in combination with a maximal range of a plurality of distances of said POC 26 from a surface of said outsole 12 define a maximal Volume of Treatment of said at least one movable protuberance (VOTp) 22 (Refer to Paragraph [0192]-[0195]..The Office takes the position that the maximal range of movement and maximal range of distances of the POC from the surface 24 of the outsole 12 are inherent at the maximal range of movement of the POC 26 are indicated by Elbaz et al and therefore inherently define a maximal VOT).
Regarding Claim 6, Elbaz et al continues to teach wherein said zone of the maximal range of movement 406,407 of said POC 26 comprises one or more zones of treatment 610,620,710,720 efficacy within which said POC generates an effective gait/posture proprioceptive and kinesthetic exercise (Refer to Figs. 11&12 Paragraph [0194]-[0195]).
Regarding Claim 7, Elbaz et al continues to teach wherein said one or more zones of treatment efficacy vary in a level of treatment efficacy (Refer to Figs. 11&12 Paragraph [0194]-[0195] to disclose the different zones provide different treatments).
Regarding Claim 8, Elbaz et al continues to teach wherein said one or more zones of treatment efficacy 610,620,710,720 in combination with a maximal range of a plurality of distances of said POC from said surface of said outsole 12,24 define an effective Volume of Treatment of said protuberance 22 (effective VOTp) (Refer to Paragraph [0192]-[0195]..The Office takes the position that the zones of treatment efficacy 610,620,710,720 and maximal range of distances of the POC 26 from the surface 24 of the outsole 12,24 are indicated by Elbaz et al and therefore inherently define an effective VOTp as indicated in Paragraphs [0194]-[0195]).
Regarding Claim 9, Elbaz et al continues to teach wherein dimensions of said VOTf 12,18,20 defined by said effective VOTp 22 so as to ensure that the predefined treatment zone of the VOTf is positioned over and within said effective VOTp (Refer to Paragraph [0192]-[0195]..The Office takes the position that the VOTf is positioned over the effective VOTp as desired since it meets all the structural limitations as claimed by Applicant).
Regarding Claim 10, Elbaz et al continues to teach wherein said VOTf 12,18,20 defines a last for said footwear 10 (The “last” is considered the inner surface of the vamp 18,20 and insole 12(inside) as defined by Applicant in paragraph [0032]).
Response to Arguments
Applicant's arguments filed 06/29/2026 have been fully considered but they are not persuasive. Wherein Applicant argues that “Elbaz does not disclose that "said vamp and insole are configured to provide, when the footwear is in use, dimensions of said VOTf in a three- dimensional space such that, within a maximal range of movement of said at least one protuberance, said POC is positioned in a predefined position directly below a predefined treatment zone of the VOTf' (emphasis added). Elbaz's Figure 9 shows a bottom-view geometry tied to the outsole plane, depicting maximal areas (elements 406/407) for protuberance placement. However, this planar representation does not teach the three-dimensional configuration of the VOTf (the inner volume of the footwear defined by the vamp and insole in a three-dimensional space) as now expressly required by amended claim 1”. The Office takes the position that the device of Elbaz et al teaches an insole and a vamp having a protuberance with a POC (Refer to annotated Fig. 2 below).
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It can be seen by Fig. 1 that the footwear is a 3 dimensional object and that the VOTf provided by the footwear would be in 3 dimensional space when used in so much as Applicant has shown a figure of a footwear and therefore Applicants arguments are not persuasive. Wherein Applicant argues “The mere fact that a footwear may have an inner volume or that a protuberance may be placed somewhere on the outsole plane does not mean that "said vamp and insole are configured to provide, when the footwear is in use, dimensions of said VOTf in a three- dimensional space such that, within a maximal range of movement of said at least one protuberance, said POC is positioned in a predefined position directly below a predefined treatment zone of the VOTf' (emphasis added). There is no inherent disclosure in Elbaz of that effect. Furthermore, Elbaz provides an embodiment where the point of contact of the protuberance is clearly not "directly below a predetermined treatment zone of the VOTf' (see Elbaz, Fig. 3, protuberances 39). Hence, not all embodiments inevitably satisfy the required configuration of amended claim 1… Applicant further notes that the Office Action alleges that "Fig. 1 depicts that the footwear is a 3D object" (Office Action, page 10). However, the mere fact that any physical footwear is inherently a three-dimensional object does not teach the claimed three-dimensional configuration”. The Office respectfully disagrees in that Elbaz et al teaches that protuberance 22 has a POC below the vamp and insole as shown in Fig. 2 (Paragraph [0160] In another embodiment, the ground engaging parts of the device are only the protuberances. In another embodiment, during all phases of gait including the stance phase the protuberances are the only parts of the device which are ground engaging. In another embodiment, during all phases of gait including the stance phase the protuberances 22 are the only parts of the device which are in direct contact with the ground.”) and therefore the POC is in a 3 dimensional space/configuration under the vamp/insole defining the VOTf in so much as Applicant has shown.
Conclusion
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/NYCA T NGUYEN/ Primary Examiner, Art Unit 3784
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