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 .
Response to Amendment
Applicant’s amendment filed February 18, 2025 has been received. Claims 1-3, 5-9, 11-17, 19-23, and 25-28 are currently pending.
Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-3, 5-9, 11-17, 19-23, and 25-28 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention.
Claims 1 and 15 recite “wherein a stiffness of the deformable heel portion is selected to be stiffer than a stiffness of the deformable outsole portion when the wearer's biometric data indicates that the wearer has a pronating heel strike or pronating stance; and wherein a stiffness of the deformable outsole portion is selected to be stiffer than a stiffness of the deformable heel portion when the wearer's biometric data indicates that the wearer has a supinating fore-foot strike or supinating stance”. The claim limitation is indefinite as it is unclear how a stiffness of the deformable heel portion is selected to be stiffer than a stiffness of the deformable outsole portion AND also the stiffness of the deformable outsole portion is selected to be stiffer than a stiffness of the deformable heel portion. It appears that only one orientation of stiffness can be achieved in a given sole. Applicant should only claim one orientation or recite “wherein a stiffness of the deformable heel portion is selected to be stiffer than a stiffness of the deformable outsole portion when the wearer's biometric data indicates that the wearer has a pronating heel strike or pronating stance; OR wherein a stiffness of the deformable outsole portion is selected to be stiffer than a stiffness of the deformable heel portion when the wearer's biometric data indicates that the wearer has a supinating fore-foot strike or supinating stance”. Claims 1 and 15 are rejected as best understood by examiner.
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, 3, 7-9, 13-15, 17, 21-23, 27 and 28 is/are rejected under 35 U.S.C. 103 as being unpatentable over Johnson (U.S. 20160324264) in view of Orlowski et al (U.S. Patent No. 6006449), and in further view of Kerns (US 2005/0060909).
Regarding claim 1, Johnson teaches a footwear apparatus (figs. 8-11), comprising: a midsole member (64) having an upper surface and a lower surface (upper and lower surface of 64), the midsole member including a first attachment fixture (100) disposed on the lower surface (fig. 8); a heel member (74) having a second attachment fixture (88 at heel) to engage at least a first portion (100 at heel) of the first attachment fixture (para. 43), the second attachment fixture to maintain the heel member proximate the lower surface of the midsole member (para. 43); wherein the heel member includes: an upper heel portion (upper portion of 74); a lower heel portion (lower portion of 74); an outsole member (72) having a third attachment fixture (88 at forefoot) to engage at least a second portion (100 at forefoot) of the first attachment fixture (para. 43), the third attachment fixture to maintain the outsole member (72) proximate the lower surface of the midsole member (para. 43); wherein the outsole member includes: an upper outsole portion (upper portion of 74); a lower outsole portion (lower portion of 74) and teaches in the description of another embodiment that an outsole can include cushioning components such as springs (para. 33). Johnson doesn’t specifically teach a deformable heel portion disposed between the upper portion and the lower portion and a deformable outsole portion disposed between the upper portion and the lower portion. However, Orlowski teaches a shoe (20) having a deformable heel portion (30) disposed between an upper portion and a lower portion (upper and lower portions of 24 at heel) and a deformable outsole portion (32) disposed between an upper portion and a lower portion (upper and lower portions of 24 at forefoot).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the claimed invention to have disposed a deformable heel portion between the upper portion and the lower portion of heel member of Johnson and to have disposed a deformable outsole portion between the upper portion and the lower portion of the outsole member of Johnson in view of Orlowski in order to provide impact absorption embedded into the heel and outsole members that is lightweight and returns a high level of energy to the wearer during walking or running activity (col. 1, lines 52-60 of Orlowski).
Johnson and Orlowski disclose the invention substantially as claimed above. When in combination, Johnson and Orlowski do not disclose wherein the deformable heel portion and the deformable outsole portion each having a stiffness based on a wearer's biometric data; wherein a stiffness of the deformable heel portion is selected to be stiffer than a stiffness of the deformable outsole portion when the wearer's biometric data indicates that the wearer has a pronating heel strike or pronating stance; and wherein a stiffness of the deformable outsole portion is selected to be stiffer than a stiffness of the deformable heel portion when the wearer's biometric data indicates that the wearer has a supinating fore-foot strike or supinating stance. However, Kerns teaches a sole portion wherein a deformable heel portion (110) and a deformable sole portion (112) each having a stiffness based on a wearer's biometric data (para.15); wherein a stiffness of the deformable heel portion is selected to be stiffer than a stiffness of the deformable outsole portion when the wearer's biometric data indicates that the wearer has a pronating heel strike or pronating stance (para.15); and wherein a stiffness of the deformable outsole portion is selected to be stiffer than a stiffness of the deformable heel portion when the wearer's biometric data indicates that the wearer has a supinating fore-foot strike or supinating stance (para.15).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the claimed invention to have modified the deformable heel portion and the deformable outsole portion of modified Johnson, to have a stiffness based on a user’s biometric data, as taught by Kerns, in order to provide an outsole with the optimum level of support and shock absorption, delivering a comfortable stride for a user.
Regarding claim 3, the Johnson/Orlowski combined reference teaches the deformable heel portion comprises a plurality of deformable elements (40 of Orlowski, col. 3, lines 54-56).
Regarding claim 7, the Johnson/Orlowski combined reference teaches the second attachment fixture (88 at heel) permits the detachable attachment of the heel member (74) to the lower surface of the midsole member (64) (paras. 35,43, and 45). fig. 11).
Regarding claim 8, the Johnson/Orlowski combined reference doesn’t specifically teach the upper surface of the heel member includes a plurality of surface features; and wherein the lower surface of the midsole member includes a plurality of surface features complimentary to the surface features on upper surface of the heel member. However, Johnson teaches another embodiment wherein the upper surface of the heel member includes a plurality of surface features; and wherein the lower surface of the midsole member includes a plurality of surface features complimentary to the surface features on upper surface of the heel member (para. 34).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the claimed invention to have added a plurality of surface features to the upper surface of the heel member of the combined reference; and a plurality of surface features to the lower surface of the midsole member of the combined reference that are complimentary to the surface features on upper surface of the heel member in view of Johnson in order to promote a friction grip to keep the midsole in position within the heel member.
Regarding claim 9, the Johnson/Orlowski combined reference teaches the deformable outsole portion comprises a plurality of deformable elements (40 of Orlowski, col. 3, lines 54-56).
Regarding claim 13, the Johnson/Orlowski combined reference teaches the third attachment fixture (88 at forefoot) permits the detachable attachment of the outsole member (72) to the lower surface of the midsole member (paras. 35,43, and 45). fig. 11).
Regarding claim 14, the Johnson/Orlowski combined reference teaches the upper surface of the outsole member includes a plurality of surface features; and wherein the lower surface of the midsole member includes a plurality of surface features complimentary to the surface features on upper surface of the outsole member. However, Johnson teaches another embodiment wherein the upper surface of the outsole member includes a plurality of surface features; and wherein the lower surface of the midsole member includes a plurality of surface features complimentary to the surface features on upper surface of the outsole member (para. 34).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the claimed invention to have added a plurality of surface features to the upper surface of the outsole member of the combined reference; and a plurality of surface features to the lower surface of the midsole member of the combined reference that are complimentary to the surface features on upper surface of the outsole member in view of Johnson in order to promote a friction grip to keep the midsole in position within the outsole member.
Regarding claim 15, Johnson teaches a method of forming a footwear sole, the method comprising: forming a first attachment fixture (100) on at least a portion of a lower surface of a midsole member (64) (fig. 8, para. 43); coupling a heel member (74) to a first portion of the lower surface of the midsole member (lower surface of 64 that attaches to 74) ( fig. 8, 11, para. 43), the heel member (74) having a second attachment fixture (88 at heel) to engage at least a first portion (100 at heel) of the first attachment fixture (para. 43); wherein the heel member (74) includes: an upper heel portion (upper portion of 74); a lower heel portion (lower portion of 74); coupling an outsole member (72) to a second portion of the lower surface of the midsole member (lower surface of 64 that attaches to 72) ( fig. 8, 11, para. 43), the outsole member having a third attachment fixture (88 at forefoot) to engage at least a second portion (100 at forefoot) of the first attachment fixture (para. 43); wherein the outsole member includes: an upper outsole portion (upper portion of 74); a lower outsole portion (lower portion of 74); and teaches in the description of another embodiment that an outsole can include cushioning components such as springs (para. 33). Johnson doesn’t specifically teach a deformable heel portion disposed between the upper portion and the lower portion and a deformable outsole portion disposed between the upper portion and the lower portion. However, Orlowski teaches a shoe (20) having a deformable heel portion (30) disposed between an upper portion and a lower portion (upper and lower portions of 24 at heel) and a deformable outsole portion (32) disposed between an upper portion and a lower portion (upper and lower portions of 24 at forefoot).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the claimed invention to have disposed a deformable heel portion between the upper portion and the lower portion of heel member of Johnson and to have disposed a deformable outsole portion between the upper portion and the lower portion of the outsole member of Johnson in view of Orlowski in order to provide impact absorption embedded into the heel and outsole members that is lightweight and returns a high level of energy to the wearer during walking or running activity (col. 1, lines 52-60 of Orlowski).
Johnson and Orlowski disclose the invention substantially as claimed above. When in combination, Johnson and Orlowski do not disclose wherein the deformable heel portion and the deformable outsole portion each having a stiffness based on a wearer's biometric data; wherein a stiffness of the deformable heel portion is selected to be stiffer than a stiffness of the deformable outsole portion when the wearer's biometric data indicates that the wearer has a pronating heel strike or pronating stance; and wherein a stiffness of the deformable outsole portion is selected to be stiffer than a stiffness of the deformable heel portion when the wearer's biometric data indicates that the wearer has a supinating fore-foot strike or supinating stance. However, Kerns teaches a sole portion wherein a deformable heel portion (110) and a deformable sole portion (112) each having a stiffness based on a wearer's biometric data (para.15); wherein a stiffness of the deformable heel portion is selected to be stiffer than a stiffness of the deformable outsole portion when the wearer's biometric data indicates that the wearer has a pronating heel strike or pronating stance (para.15); and wherein a stiffness of the deformable outsole portion is selected to be stiffer than a stiffness of the deformable heel portion when the wearer's biometric data indicates that the wearer has a supinating fore-foot strike or supinating stance (para.15).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the claimed invention to have modified the deformable heel portion and the deformable outsole portion of modified Johnson, to have a stiffness based on a user’s biometric data, as taught by Kerns, in order to provide an outsole with the optimum level of support and shock absorption, delivering a comfortable stride for a user.
Regarding claim 17, the Johnson/Orlowski combined reference teaches wherein the deformable heel portion comprises a plurality of deformable elements (40 of Orlowski, col. 3, lines 54-56).
Regarding claim 21, the Johnson/Orlowski combined reference teaches wherein coupling the heel member (74) to the first portion of the lower surface of the midsole member (lower surface of 64 that attaches to 74 flexible per paras. 33,38) further comprises: detachably attaching the heel member (74) to the lower surface of the flexible midsole member via the second attachment fixture (88 at heel) (paras. 35 and 45).
Regarding claim 22, the Johnson/Orlowski combined reference doesn’t specifically teach coupling the heel member to the first portion of the lower surface of the midsole member further comprises: engaging a plurality of surface features disposed across at least a portion of the upper surface the heel member with a corresponding plurality of surface features disposed across at least a portion of the first portion of the lower surface of the midsole member.
However, Johnson teaches another embodiment wherein coupling the heel member to the first portion of the lower surface of the midsole member further comprises: engaging a plurality of surface features disposed across at least a portion of the upper surface the heel member with a corresponding plurality of surface features disposed across at least a portion of the first portion of the lower surface of the midsole member (para. 34).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the claimed invention to have added the method step of engaging a plurality of surface features disposed across at least a portion of the upper surface the heel member with a corresponding plurality of surface features disposed across at least a portion of the first portion of the lower surface of the midsole member in view of Johnson in order to promote a friction grip to keep the midsole in position within the heel member.
Regarding claim 23, the Johnson/Orlowski combined reference teaches coupling the outsole member to the second portion of the lower surface of the midsole member further comprises: coupling the outsole member (72) to the second portion of the lower surface of the flexible midsole member (lower surface of 64 that attaches to 72, para. 43, flexible per paras. 33,38), wherein the deformable outsole portion comprises a plurality of deformable elements (40 of Orlowski, col. 3, lines 54-56).
Regarding claim 27, the Johnson/Orlowski combined reference teaches coupling the outsole member to the second portion of the lower surface of the midsole member further comprises: detachably attaching the outsole member (72) to the second portion of the lower surface of the midsole member (lower surface of 64 that attaches to 72) via the third attachment fixture (88 at forefoot) (para. 43).
Regarding claim 28, the Johnson/Orlowski combined reference doesn’t specifically teach coupling the outsole member to the second portion of the lower surface of the midsole member further comprises: engaging a plurality of surface features disposed across at least a portion of the upper surface the outsole member with a corresponding plurality of surface features disposed across at least a portion of the second portion of the lower surface of the midsole member.
However, Johnson teaches another embodiment wherein coupling the outsole member to the second portion of the lower surface of the midsole member further comprises: engaging a plurality of surface features disposed across at least a portion of the upper surface the outsole member with a corresponding plurality of surface features disposed across at least a portion of the second portion of the lower surface of the midsole member (para. 34).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the claimed invention to have added the method step of engaging a plurality of surface features disposed across at least a portion of the upper surface the outsole member with a corresponding plurality of surface features disposed across at least a portion of the second portion of the lower surface of the midsole member in view of Johnson in order to promote a friction grip to keep the midsole in position within the heel member.
Claim(s) 5, 6, 11, 12, 19, 20, 25, and 26 is/are rejected under 35 U.S.C. 103 as being unpatentable over Johnson (U.S. 20160324264), Orlowski et al (U.S. Patent No. 6006449), and Kerns (US 2005/0060909), and further in view of Lutz (U.S. Patent No. 4391048).
Regarding claim 5, the Johnson/Orlowski/Kerns combined reference doesn’t specifically teach each of the plurality of deformable elements formed using a material having the same mechanical properties. However, Lutz teaches a shoe sole (figs. 1,2) including a plurality of deformable elements (5) wherein each of the plurality of deformable elements formed using a material having the same mechanical properties (col. 5, lines 38-46).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the claimed invention to have formed each of the plurality of deformable elements of the combined reference using a material having the same mechanical properties in view of Lutz in order to provide even support to the wearer’s foot.
Regarding claim 6, the Johnson/Orlowski/Kerns combined reference fails to teach at least two of the plurality of deformable elements formed using materials having different mechanical properties. However, Lutz teaches a shoe sole (figs. 1,2) including a plurality of deformable elements (5) wherein at least two of the plurality of deformable elements formed using materials having different mechanical properties (col. 5, lines 47-52).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the claimed invention to have formed each of the plurality of deformable elements of the combined reference using materials having different mechanical properties in view of Lutz in order to provide variable support to compensate for extreme weight or foot defects of the wearer (col. 5, lines 47-52 of Lutz).
Regarding claim 11, the Johnson/Orlowski/Kerns combined reference doesn’t specifically teach each of the plurality of deformable elements formed using a material having the same mechanical properties. However, Lutz teaches a shoe sole (figs. 1,2) including a plurality of deformable elements (5) wherein each of the plurality of deformable elements formed using a material having the same mechanical properties (col. 5, lines 38-46).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the claimed invention to have formed each of the plurality of deformable elements of the combined reference using a material having the same mechanical properties in view of Lutz in order to provide even support to the wearer’s foot.
Regarding claim 12, the Johnson/Orlowski/Kerns combined reference fails to teach at least two of the plurality of deformable elements formed using materials having different mechanical properties. However, Lutz teaches a shoe sole (figs. 1,2) including a plurality of deformable elements (5) wherein at least two of the plurality of deformable elements formed using materials having different mechanical properties (col. 5, lines 47-52).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the claimed invention to have formed at least two of the plurality of deformable elements of the combined reference using materials having different mechanical properties in view of Lutz in order to provide variable support to compensate for extreme weight or foot defects of the wearer (col. 5, lines 47-52 of Lutz).
Regarding claim 19, the Johnson/Orlowski/Kerns combined reference fails to teach each of the plurality of deformable elements formed using a material having the same mechanical properties. However, Lutz teaches a shoe sole (figs. 1,2) including a plurality of deformable elements (5) wherein each of the plurality of deformable elements formed using a material having the same mechanical properties (col. 5, lines 38-46).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the claimed invention to have formed each of the plurality of deformable elements of the combined reference using a material having the same mechanical properties in view of Lutz in order to provide even support to the wearer’s foot.
Regarding claim 20, the Johnson/Orlowski/Kerns combined reference fails to teach at least two of the plurality of deformable elements formed using materials having a different mechanical properties. However, Lutz teaches a shoe sole (figs. 1,2) including a plurality of deformable elements (5) wherein at least two of the plurality of deformable elements formed using materials having different mechanical properties (col. 5, lines 47-52).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the claimed invention to have formed at least two of the plurality of deformable elements of the combined reference using materials having different mechanical properties in view of Lutz in order to provide variable support to compensate for extreme weight or foot defects of the wearer (col. 5, lines 47-52 of Lutz).
Regarding claim 25, the Johnson/Orlowski/Kerns combined reference fails to teach each of the plurality of deformable elements formed using a material having the same mechanical properties. However, Lutz teaches a shoe sole (figs. 1,2) including a plurality of deformable elements (5) wherein each of the plurality of deformable elements formed using a material having the same mechanical properties (col. 5, lines 38-46).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the claimed invention to have formed each of the plurality of deformable elements of the combined reference using a material having the same mechanical properties in view of Lutz in order to provide even support to the wearer’s foot.
Regarding claim 26, the Johnson/Orlowski/Kerns combined reference fails to teach at least two of the plurality of deformable elements formed using materials having different mechanical properties. However, Lutz teaches a shoe sole (figs. 1,2) including a plurality of deformable elements (5) wherein at least two of the plurality of deformable elements formed using materials having different mechanical properties (col. 5, lines 47-52).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the claimed invention to have formed at least two of the plurality of deformable elements of the combined reference using materials having different mechanical properties in view of Lutz in order to provide variable support to compensate for extreme weight or foot defects of the wearer (col. 5, lines 47-52 of Lutz).
Claim(s) 1, 2, 15 and 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kim (U.S. 20060021260) in view of Lim (U.S. 20130074364).
Regarding claim 1, Kim teaches a footwear apparatus (fig. 4), comprising: a midsole member (10) having an upper surface (top side opposing 11) and a lower surface (11), the midsole member including a first attachment fixture (14b) disposed on the lower surface (fig. 4); a heel member (13) having a second attachment fixture (16b) to engage at least a first portion (14b at heel) of the first attachment fixture (para. 26), the second attachment fixture (16b) to maintain the heel member proximate the lower surface of the midsole member (para. 26); wherein the heel member includes: an upper heel portion (16); a lower heel portion (lower layer of 13 under 16, see figs. 7,8); an outsole member (12) having a third attachment fixture (16b on 12) to engage at least a second portion (14b at forefoot) of the first attachment fixture, the third attachment fixture (16b on 12) to maintain the outsole member proximate the lower surface of the midsole member (para. 26); wherein the outsole member includes: an upper outsole portion (16); a lower outsole portion (lower layer of 12 under 16, see figs. 7,8); but fails to teach a deformable heel portion disposed between the upper portion and the lower portion, and a deformable outsole portion disposed between the upper portion and the lower portion. However, Lim teaches footwear having a deformable heel portion (22 at heel, para. 24)(fig. 1) disposed between an upper portion (20) and a lower portion (17) (figs. 1,2), and a deformable outsole portion (22 at forefoot, para. 24) disposed between an upper portion (20) and a lower portion (16).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the claimed invention to have disposed a deformable heel portion between the upper portion and the lower portion of heel member of Kim and to have disposed a deformable outsole portion between the upper portion and the lower portion of the outsole member of Kim in view of Lim in order to provide increased cushioning to increase wearer comfort.
Kim and Lim disclose the invention substantially as claimed above. When in combination, Kim and Lim do not disclose wherein the deformable heel portion and the deformable outsole portion each having a stiffness based on a wearer's biometric data; wherein a stiffness of the deformable heel portion is selected to be stiffer than a stiffness of the deformable outsole portion when the wearer's biometric data indicates that the wearer has a pronating heel strike or pronating stance; and wherein a stiffness of the deformable outsole portion is selected to be stiffer than a stiffness of the deformable heel portion when the wearer's biometric data indicates that the wearer has a supinating fore-foot strike or supinating stance. However, Kerns teaches a sole portion wherein a deformable heel portion (110) and a deformable sole portion (112) each having a stiffness based on a wearer's biometric data (para.15); wherein a stiffness of the deformable heel portion is selected to be stiffer than a stiffness of the deformable outsole portion when the wearer's biometric data indicates that the wearer has a pronating heel strike or pronating stance (para.15); and wherein a stiffness of the deformable outsole portion is selected to be stiffer than a stiffness of the deformable heel portion when the wearer's biometric data indicates that the wearer has a supinating fore-foot strike or supinating stance (para.15).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the claimed invention to have modified the deformable heel portion and the deformable outsole portion of modified Kim, to have a stiffness based on a user’s biometric data, as taught by Kerns, in order to provide an outsole with the optimum level of support and shock absorption, delivering a comfortable stride for a user.
Regarding claim 2, Kim teaches an upper portion couplable to the upper surface of the midsole member (upper coupled to upper surface of 11, fig. 4).
Regarding claim 15, Kim teaches a method of forming a footwear sole (para. 26, fig. 4), the method comprising: forming a first attachment fixture (14b) on at least a portion of a lower surface (11) of a midsole member (10); coupling a heel member (13) to a first portion (11 at heel) of the lower surface of the midsole member, the heel member (13) having a second attachment fixture (16b at 13) to engage at least a first portion (14b at heel) of the first attachment fixture (para. 26); wherein the heel member includes: an upper heel portion (16); a lower heel portion (lower layer of 13 under 16, see figs. 7,8); coupling an outsole member (12) to a second portion (11 at forefoot) of the lower surface of the midsole member, the outsole member having a third attachment fixture (16b at 12) to engage at least a second portion (14b at forefoot) of the first attachment fixture (para. 26); wherein the outsole member includes: an upper outsole portion (16); a lower outsole portion (lower layer of 12 under 16, see figs. 7,8); but fails to teach a deformable heel portion disposed between the upper portion and the lower portion, and a deformable outsole portion disposed between the upper portion and the lower portion. However, Lim teaches footwear having a deformable heel portion (22 at heel, para. 24)(fig. 1) disposed between an upper portion (20) and a lower portion (17) (figs. 1,2), and a deformable outsole portion (22 at forefoot, para. 24) disposed between an upper portion (20) and a lower portion (16).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the claimed invention to have disposed a deformable heel portion between the upper portion and the lower portion of heel member of Kim and to have disposed a deformable outsole portion between the upper portion and the lower portion of the outsole member of Kim in view of Lim in order to provide increased cushioning to increase wearer comfort.
Kim and Lim disclose the invention substantially as claimed above. When in combination, Kim and Lim do not disclose wherein the deformable heel portion and the deformable outsole portion each having a stiffness based on a wearer's biometric data; wherein a stiffness of the deformable heel portion is selected to be stiffer than a stiffness of the deformable outsole portion when the wearer's biometric data indicates that the wearer has a pronating heel strike or pronating stance; and wherein a stiffness of the deformable outsole portion is selected to be stiffer than a stiffness of the deformable heel portion when the wearer's biometric data indicates that the wearer has a supinating fore-foot strike or supinating stance. However, Kerns teaches a sole portion wherein a deformable heel portion (110) and a deformable sole portion (112) each having a stiffness based on a wearer's biometric data (para.15); wherein a stiffness of the deformable heel portion is selected to be stiffer than a stiffness of the deformable outsole portion when the wearer's biometric data indicates that the wearer has a pronating heel strike or pronating stance (para.15); and wherein a stiffness of the deformable outsole portion is selected to be stiffer than a stiffness of the deformable heel portion when the wearer's biometric data indicates that the wearer has a supinating fore-foot strike or supinating stance (para.15).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the claimed invention to have modified the deformable heel portion and the deformable outsole portion of modified Kim, to have a stiffness based on a user’s biometric data, as taught by Kerns, in order to provide an outsole with the optimum level of support and shock absorption, delivering a comfortable stride for a user.
Regarding claim 16, Kim teaches coupling an upper shoe portion to at least a portion of an upper surface of the midsole member (upper coupled to upper surface of 11, fig. 4).
Response to Arguments
In view of Applicant's amendment, the search has been updated, and new prior art has been identified and applied. Applicant's arguments have been considered but, as they are drawn solely to the newly amended limitations, are moot in view of the new ground(s) of rejection.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/KHOA D HUYNH/Supervisory Patent Examiner, Art Unit 3732