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 .
Election/Restrictions
Applicant’s election without traverse of Group I, claims 1-33, in the reply filed on 4/27/2026 is acknowledged.
Claims 34-66 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 4/27/2026.
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 1-6, 8-15, 17-24, and 26-33 are rejected under 35 U.S.C. 103 as being unpatentable over Gopalan (US 2020/0199349).
Gopalan teaches a shoe sole including a crosslinked polyolefin elastomer, the crosslinked olefin elastomer including a silane-grafted polyolefin elastomer, and ethylene vinyl acetate component (which corresponds to the elastomer component of the instant claims), and a peroxide crosslinking agent. See ¶72. The crosslinker may provide carbon-carbon crosslinks along the hydrocarbon backbone. ¶74. Gopalan teaches that the crosslinks are silane graft-silane graft, silane graft-carbon crosslinks, and/or carbon-carbon crosslinks. Given this teaching, one of ordinary skill in the art would at once envisage carbon-carbon crosslinks in the absence of silane crosslinks, given the “and/or” language. This meets instant claims 1 and 12. The crosslinked foam polyolefin elastomers are closed-cell foams. See ¶109. Additives can be added to the composition used to produce the foam. This would necessarily result in additives dispersed in the foamed crosslinked elastomer. See ¶84-90 and ¶102. Water is not necessary or used to produce the crosslinked polyolefin elastomer foams of Gopalan. This means the foams are “substantially water free.” Regarding the limitation which states “wherein the additives and elastomer polymers are in a sufficient amount that a melting temperature of the crystalline regions in the foamed peroxide-crosslinked polyolefin elastomer is greater than 100ºC as measured by differential scanning calorimeter thermographs,” the amount of EVA copolymer in the crosslinked foam polyolefin elastomers of Gopalan is the same as that disclosed in the Examples of the instant invention (¶97) and additives for use in the foams of Gopalan include metal oxides and silicas (silicon oxide, which meets instant claims 6 and 31) in amounts (see ¶85 and ¶87 of Gopalan; this meets instant claim 6) which will provide the melting temperature recited in the instant claims, as disclosed in ¶84 of the instant specification.
Gopalan ‘349 teach that the polyolefin of the composition includes silane-grafted polyolefin elastomer; silane-grafted olefin block copolymers; polyolefin elastomers; olefin-block copolymers; and combinations thereof (see abstract), in addition to an ethylene vinyl acetate and a foaming agent (see abstract). Given this teaching, it would have been obvious to use combinations of silane-grafted polyolefin elastomers; combinations of silane-grafted polyolefin elastomers with an olefin copolymer, including one which is an olefin with a comonomer of ethylene, propylene, 1-butene, 1-pentene, 1-hexene, 1-octene, 1-decene, 1-dodecene, 1-tetradecene, 1-hexadecene, and 1-octadence. See ¶44; combinations of silane-grafted polyolefin elastomers and block copolymers; and combinations with all of silane-grafted polyolefin elastomer; silane-grafted olefin block copolymers; polyolefin elastomers; and olefin-block copolymers. This meets instant claims 28-29. The polyolefin, which includes combinations of silane-grafted polyolefin elastomers, is included in an amount from 0 to 100wt%. It would have been obvious to one of ordinary skill in the art to include from 0 to 100wt% of two silane-grafted polyolefin elastomers, given the teaching that the polyolefin of the composition includes silane-grafted polyolefin elastomer; silane-grafted olefin block copolymers; polyolefin elastomers; olefin-block copolymers; and combinations thereof (see abstract), in addition to an ethylene vinyl acetate and a foaming agent (see abstract). This meets instant claims 11, 13, 17-21, and 23-24. Gopalan teaches that the crosslinks are silane graft-silane graft, silane graft-carbon crosslinks, and/or carbon-carbon crosslinks. Given this teaching, one of ordinary skill in the art would at once envisage carbon-carbon crosslinks in the absence of silane crosslinks, given the “and/or” language. This meets instant claims 1 and 12.
The silane grafts of the silane-grafted polyolefin elastomers of Gopalan ‘349 include alkoxysilanes including alkylsilanes, such as triethoxysilanes, which meets instant claims 14-15 when R1, R2, and R3 are methyl. See ¶61. Examples of the triethoxysilanes of ¶63 meet instant claims 14-15, and these alkoxysilanes form the grafts on the silane-grafted polyolefin elastomers of Gopalan ‘349 as stated in ¶59 of the applied reference.
The silane-grafted polyolefin disclosed in Gopalan ‘349 has a density less than 0.86 g/cm3 (¶40). This meets the density of instant claim 22. The silane-grafted polyolefin includes a silane-grafted polyolefin elastomer; a silane-grafted olefin block copolymer; a polyolefin elastomer; an olefin block copolymer, and combinations thereof. This meets instant claims 5 and 17. Examples of the polyolefin elastomer include EPDM. This meets instant claim 4, in addition to the EVA disclosed in Gopalan ‘349. Examples of the comonomer of the disclosed copolymers include ethylene, propylene, 1-butene, 1-pentene, 1-hexene, 1-octene, 1-decene, 1-dodecene, 1-tetradecene, 1-hexadecene, and 1-octadence. See ¶44. This meets instant claim 18.
When the foaming agent is included the foamed footwear article will have residues of a blowing agent which meets instant claim 32. With regards to instant claim 8, Gopalan ‘349 teaches that the shoe sole can be shaped to be placed above an outsole. See ¶37.
The percent crystallinity of the silane-grafted polyolefin elastomer; silane-grafted olefin block copolymers; polyolefin elastomers; olefin-block copolymers; and combinations thereof (see abstract), is less than 40%. Based on this teaching, it would have been obvious to one of ordinary skill in the art to use a combination of silane-grated polyolefin elastomers, one having a density less than 0.86 g/cm3 and one having a crystallinity less than 40%. See ¶52-53. This meets instant claim 22.
The amount of vinyl acetate in the ethylene/vinyl acetate copolymer is from, for example, greater than 10 mol% to less than 30mol%. See ¶69. This meets instant claims 26-27.
Embodiments of the shoe sole of Gopalan comprise identical materials as recited in the instant claims. These embodiments will necessarily have the same properties as the instantly claimed shoe soles, including the tear strength of instant claim 2; the shore C hardness of instant claim 3; the compression set of instant claim 9; the plurality of closed cells discussed in instant claim 10; and the rebound resilience of instant claim 33.
The condensation catalyst can be used in amounts as little as about 0.01wt% (¶75). This meets “substantially free of a condensation catalyst” as described in paragraphs 42 and 71 of the instant specification. It would have been obvious to use an amount of catalyst of about 0.01wt%, given the teaching at ¶75 (last sentence) of Gopalan ’349, because “a reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill the art…” Merck & Co. v. Biocraft Laboratories, 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989). See MPEP 2123.
Allowable Subject Matter
Claims 7, 16, and 25 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The closest prior art is that discussed above, i.e. (1) Gopalan (US 2020/0199349), and additionally (2) Gopalan et al. (US 2018/0160767) and (3) JPH11137307A. Because JPH 11137307A is not in English, the machine-translated English equivalent is cited below and is attached.
Gopalan et al. ‘349 teaches a shoe sole including a crosslinked polyolefin elastomer, the crosslinked olefin elastomer including a silane-grafted polyolefin elastomer, and ethylene vinyl acetate component (which corresponds to the elastomer component of the instant claims), and a peroxide crosslinking agent. See ¶72. The crosslinker may provide carbon-carbon crosslinks along the hydrocarbon backbone. ¶74. Gopalan teaches that the crosslinks are silane graft-silane graft, silane graft-carbon crosslinks, and/or carbon-carbon crosslinks. Given this teaching, one of ordinary skill in the art would at once envisage carbon-carbon crosslinks in the absence of silane crosslinks, given the “and/or” language. This meets instant claims 1 and 12. The crosslinked foam polyolefin elastomers are closed-cell foams. See ¶109. Additives can be added to the composition used to produce the foam. This would necessarily result in additives dispersed in the foamed crosslinked elastomer. See ¶84-90 and ¶102. Water is not necessary or used to produce the crosslinked polyolefin elastomer foams of Gopalan. This means the foams are “substantially water free.” Regarding the limitation which states “wherein the additives and elastomer polymers are in a sufficient amount that a melting temperature of the crystalline regions in the foamed peroxide-crosslinked polyolefin elastomer is greater than 100ºC as measured by differential scanning calorimeter thermographs,” the amount of EVA copolymer in the crosslinked foam polyolefin elastomers of Gopalan is the same as that disclosed in the Examples of the instant invention (¶97) and additives for use in the foams of Gopalan include metal oxides and silicas (silicon oxide, which meets instant claims 6 and 31) in amounts (see ¶85 and ¶87 of Gopalan; this meets instant claim 6) which will provide the melting temperature recited in the instant claims, as disclosed in ¶84 of the instant specification.
Gopalan ‘349 fails to teach inclusion of stearic acid; fails to teach a first silane-grafted polyolefin having a first melt index of less than about 5 and a second silane-grafted polyolefin having a second melt index greater than about 20; and fails to teach a first silane-grafted polyolefin having a higher weight average molecular weight than a second silane-grafted polyolefin. It would not have been obvious, based on Gopalan ‘349, to include stearic acid in the disclosed compositions; to use a first silane-grafted polyolefin having a first melt index of less than about 5 and a second silane-grafted polyolefin having a second melt index greater than about 20; and to use a first silane-grafted polyolefin having a higher weight average molecular weight than a second silane-grafted polyolefin.
Gopalan et al. ‘767 teach a shoe sole composition comprising a foamed silane-crosslinked polyolefin elastomer used to produce shoe soles (abstract). The foamed silane-crosslinked polyolefin elastomer is produced from a blend comprising a first polyolefin having a density less than 0.86 g/cm3, a second polyolefin having a crystallinity less than 40%, a silane crosslinker, a grafting initiator, a condensation catalyst, and a foaming agent.
Gopalan et al. ‘767 fail to teach that the foamed silane-crosslinked polyolefin elastomer comprises a silane-grafted polyolefin and an elastomer which are crosslinked with C-C bonds. As shown in Figure 3, the foamed silane-crosslinked polyolefin elastomer is crosslinked through silanes. This falls outside the scope of the instantly claimed invention, which requires that the foamed crosslinked polyolefin elastomer be substantially free of silane crosslinking.
JPH11137307A teaches a sole for footwear produced from a rubber composition comprising silica, a silane coupling agent a silylation agent, a vulcanization aid such as zinc oxide or stearic acid, and which may further comprise anti-aging agents and plasticizers. See ¶22.
JPH11137307A fails to teach that the composition comprises a silane-grafted polyolefin. JPH11137307A fails to teach that the rubber is substantially free of silane crosslinking. JPH1137307 fails to teach that the composition comprises both zinc oxide and stearic acid, let alone a motivation to utilized both in the rubber composition.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to K. B BOYLE whose telephone number is (571)270-7338. The examiner can normally be reached 8:30 am to 5pm, Monday - Friday.
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/K. BOYLE/Primary Examiner, Art Unit 1766
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