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 .
Response to Amendment
Applicant’s amendment of 08/06/2025 is acknowledged.
Claims 1-4, 6-16, and 18 are presented.
Claims 1 and 11 are presented in independent form and are amended.
Dependent claims 4, 8, and 18 are amended.
The present office action treats claims 1-4, 6-16, and 18 on the merits.
The present office action is a final rejection.
Specification
A specification amendment is acknowledged and is entered.
Drawings
Replacement sheets were received on 08/06/2025. These drawings are acceptable and are entered.
Response to Arguments
Applicant’s REMARKS of 08/06/2025 are acknowledged (see p. 9-14 of the reply).
Regarding Objections to the Drawings: Applicant’s arguments are fully considered. Applicant’s specification amendment and replacement drawing sheets render the drawings objections as applied in the previous office action moot.
Regarding Rejections Under 35 U.S.C. §103: Applicant’s arguments are fully considered and are not persuasive. Applicant argues (p. 13) that
in reciting that the first side support consists of a side support beginning and terminating on a medial side of the first article of footwear, the first article of footwear is closed to unrecited side supports, such as a side support disposed on a lateral side of the first article of footwear. See MPEP §2111.03(11) ("When the phrase 'consisting of appears in a clause of the body of a claim, rather than immediately following the preamble, there is an 'exceptionally strong presumption that a claim term set of with "consisting of' is closed to unrestricted elements."') (citing Multilayer Stretch Cling Film Holdings, Inc. v. Berry Plastics Corp., 831 F.3d 1350, 1359, 119 USPQ2d 1773, 1781 (Fed. Cir. 2016)). Similarly, in reciting that the second side support consists of a side support beginning and terminating on a lateral side of the second article of footwear, the second article of footwear is closed to unrecited side supports, such as a side support disposed on a medial side of the second article of footwear
Examiner’s reply:
This argument is fully considered and is not persuasive because the phrase “consisting of” limits only the element set forth in that clause; other elements are not excluded from the claim as a whole. Attention is drawn to MPEP 2111.03 which states in part; emphases provided by Examiner: “When the phrase “consisting of” appears in a clause of the body of a claim, rather than immediately following the preamble, there is an “exceptionally strong presumption that a claim term set off with ‘consisting of’ is closed to unrecited elements.”...However, the “consisting of” phrase limits only the element set forth in that clause; other elements are not excluded from the claim as a whole.” In the present case, the term “consisting of” in claim 1 line 3 limits only a first side support of a first article of footwear and does not mean that “the first article of footwear is closed to unrecited side supports” as argued, and the term “consisting of” in claim 1 lines 8-9 limits only a second side support of a second article of footwear and does not mean that “the second article of footwear is closed to unrecited side supports” as argued. In like manner, the term “consisting of” in claim 11 line 6 limits only a first side support of a first article of footwear and does not mean that “the first article of footwear is closed to unrecited side supports” as argued, and the term “consisting of” in claim 11 line 15 limits only a second side support of a second article of footwear and does not mean that “the second article of footwear is closed to unrecited side supports” as argued.
Applicant argues and in relation to prior art [Foxen, US 2016/0058122] (p. 13):
While Figures 7-9 of Foxen (Figure 7 reproduced above) illustrate a wearer (1000) with the article of footwear (10) on both the left and right foot, neither Figures 7-9 of Foxen nor the accompanying description discloses or even suggests that the article of footwear (10) on the left foot includes stability fins (86) arranged differently from the stability fins (86) of the article of footwear (10) on the right foot. In fact, Foxen labels the article of footwear (10) on the left foot and the right foot of the wearer (1000) with the same reference label "10." Because Foxen invariably describes features of only a singular article of footwear (10) throughout the entire specification, the disclosure of Foxen regarding the article of footwear (10) would apply equally to the article of footwear (10) on the left foot of the wearer (1000) as it would to the article of footwear (10) on the right foot of the wearer (1000). Thus, Foxen is silent as to a kit including a first article of footwear including a first side support consisting of a side support beginning and terminating on a medial side and a second article of footwear including a second side support consisting of a side support beginning and terminating on a lateral side, as Foxen never distinguishes between a first article of footwear and a second article of footwear of a kit.
Examiner’s reply:
This argument is fully considered and is not persuasive it is not commensurate with claim language. As argued above in addressing Applicant’s remarks of p. 13, the term “consisting of” in claim 1 line 3 limits only a first side support of a first article of footwear and does not mean that “the first article of footwear is closed to unrecited side supports” as argued, and the term “consisting of” in claim 1 lines 8-9 limits only a second side support of a second article of footwear and does not mean that “the second article of footwear is closed to unrecited side supports” as argued. In like manner, the term “consisting of” in claim 11 line 6 limits only a first side support of a first article of footwear and does not mean that “the first article of footwear is closed to unrecited side supports” as argued, and the term “consisting of” in claim 11 line 15 limits only a second side support of a second article of footwear and does not mean that “the second article of footwear is closed to unrecited side supports” as argued.
Applicant’s arguments regarding stability fins 86 and their arrangement are fully considered and are not persuasive. In applying art to the claims, one of stability fins 86 is identified as being a first side support (see p. 3 and p. 15 of the office action of 05/06/2025; see also rejections below), and another stability fin is identified as being the claimed second side support (see p. 4-6 and p. 16-20 of the office action of 05/06/2025; see also rejections below). Thus Foxen as modified meets the argued limitations “a first side support consisting of a side support extending between and connecting the first upper and the first outsole in a forefoot region of the first sole structure and beginning and terminating on a medial side of the first article of footwear” and “a second side support consisting of a side support extending between and connecting the second upper and the second outsole in a forefoot region of the second sole structure and beginning and terminating on a lateral side of the second article of footwear” as set forth hereinbelow. It is noted the “consisting of” phrase limits only the element set forth in that clause; other elements are not excluded from the claim as a whole.
Claim Rejections - 35 USC § 103
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) 1-3 and 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over [Foxen, US 2016/0058122].
Regarding claim 1:
Foxen discloses (Figs. 1-6):
a first article of footwear 10 (i.e. “article of footwear 10”; para 27) including a first upper 20 (i.e. “upper 20”; para 27), a first sole structure 30 (i.e. “sole structure 30”; para 27) having a first outsole 32 (i.e. “outsole 32”; para 32) defining a first ground-contacting surface (para 32), and a first side support 86 (i.e. the one of “stability fins 86” “positioned on medial side 15” (para 40)) extending between (Figs. 1-3) consisting of a side support 86 (i.e. the one of “stability fins 86” “positioned on medial side 15” (para 40)) extending between (Figs. 1-3) and connecting (Figs. 1-3) the first upper and the first outsole (attention is drawn to paragraph [0035] of the present disclosure which states, in relevant part (emphasis provided by Examiner): “When an element or layer is referred to as being..."connected to,"...another element or layer, it may be directly on, engaged, connected, attached, or coupled to the other element or layer, or intervening elements or layers may be present.”) in a midfoot region 12 (i.e. “midfoot region 12”; para 27) of the first sole structure and beginning and terminating on a medial side 15 of the first article of footwear (para 40; Figs. 1-6); and
a second side support 86 (i.e. the one of “stability fins 86” “positioned on lateral side 14”; para 40) consisting of a side support 86 (i.e. the one of “stability fins 86” “positioned on lateral side 14”; para 40) extending between and connecting the first upper and the first outsole in a midfoot region 12 (i.e. “midfoot region 12”; para 27) of the first sole structure and beginning and terminating on a lateral side 14 of the first article of footwear (para 40; Figs. 1-6).
Foxen Figs. 1-6 does not expressly disclose the first side support 86 is extending between and connecting the first upper and the first outsole in a forefoot region of the first sole structure.
Rather, as explained above, first side support 86 is provided in the midfoot region 12 (para 40; Figs. 1-6).
Nevertheless and in further view of Foxen:
Foxen para 40 teaches (emphasis provided by Examiner): “Although depicted as being in a single position of midfoot region 12 on each of medial side 15 and lateral side 14, any number of stability fins 86 may be positioned anywhere along insert 80. Stability fins 86 may also be either concentrated in certain locations along insert 80 or distributed throughout insert 80.”
Foxen further teaches “Stability fins 86...provide stability to footwear 10 when placed under banking forces” (para 40).
It 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 to have modified the article of footwear of Foxen Figs. 1-6 such that it is provided with a first side support consisting of a side support extending between and connecting the first upper and the first outsole in a forefoot region of the first sole structure and beginning and terminating on the medial side of the first article of footwear and also a second side support consisting of a side support extending between and connecting the first upper and the first outsole in the forefoot region of the first sole structure and beginning and terminating on the lateral side of the first article of footwear in order to provide stability to the footwear when placed under banking forces at the forefoot region thereof, as suggested by Foxen (para 40).
In adopting the modification above, the first article of footwear comprises both a first side support consisting of a side support as claimed and also a second side support consisting of a side support extending between and connecting the first upper and the first outsole in the forefoot region of the first sole structure and beginning and terminating on a lateral side of the first article of footwear.
The modified Foxen as applied above does not meet the limitation:
A kit comprising:
a first article of footwear including a first upper, a first sole structure having a first outsole defining a first ground-contacting surface, and a first side support consisting of a side support extending between and connecting the first upper and the first outsole in a forefoot region of the first sole structure and beginning and terminating on a medial side of the first article of footwear; and
a second article of footwear including a second upper, a second sole structure having a second outsole defining a second ground-contacting surface, and a second side support consisting of a side support extending between and connecting the second upper and the second outsole in a forefoot region of the second sole structure and beginning and terminating on a lateral side of the second article of footwear.
Nevertheless and in further view of Foxen:
Foxen as embodied in Figs. 7-9 teaches a “wearer 1000” (para 50) wearing a kit (i.e. both articles of footwear 10) comprising a first article of footwear 10 (i.e. one of 10; Figs. 7-9) and a second article of footwear 10 (Figs. 7-8).
It 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 to have modified the modified Foxen such that it is provided in duplicate, thereby yielding a kit comprising a first article and a second article, in order to yield a kit comprising two articles of footwear wherein the first article can be worn by a first foot and wherein the second article can be worn by a second foot, as suggested by Foxen Figs. 7-9.
In adopting the modification, the limitation “and a second article of footwear including a second upper, a second sole structure having a second outsole defining a second ground-contacting surface, and a second side support consisting of a side support extending between and connecting the second upper and the second outsole in a forefoot region of the second sole structure and beginning and terminating on a lateral side of the second article of footwear” would be met insofar as both first and second articles of footwear would each have a first side support consisting of a side support extending between and connecting each respective upper and the each respective outsole in a forefoot region of each respective sole structure and beginning and terminating on a medial side of each respective article of footwear and also a second side support consisting of a side support extending between and connecting the each respective upper and each respective outsole in a forefoot region of each respective sole structure and beginning and terminating on a lateral side of the each respective article of footwear. In other words, the first side support consisting of a side support of the first article of footwear of the modified Foxen would be the first side support of claim 1 lines 3-5 and the second side support consisting of a side support of the second article of footwear of the modified Foxen would be the second side support of claim 1 lines 8-11.
Regarding claim 2:
Foxen teaches The kit of Claim 1, as set forth above.
The modified Foxen further meets the limitation wherein the first outsole 32 is a first plate (Figs. 1-3) and the second outsole is a second plate (the Foxen is modified so as to be provided in duplicate (see above treatment of claim 1) such that each of the first and second articles of footwear has a plate outsole).
Regarding claim 3:
Foxen teaches The kit of Claim 2, as set forth above.
Foxen as applied to claim 2 above does not expressly disclose further comprising a first fluid-filled chamber disposed between the first plate and the first upper and a second fluid-filled chamber disposed between the second plate and the second upper.
Nevertheless and in further view of Foxen:
Foxen teaches “Midsole 31 may include a fluid-filled chamber” (para 32). Foxen further teaches “In some articles of footwear, the midsole may include...additional footwear elements that enhance the comfort or performance of the footwear, including...fluid-filled chambers...any of these additional footwear elements may be located between the midsole and the upper, located between the midsole and the outsole, embedded within the midsole, or encapsulated by the foamed polymer material of the midsole, for example. Although many midsoles are primarily formed from a foamed polymer material, fluid-filled chambers or other non-foam structures may form a majority of some midsole configurations” (para 4).
It 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 to have modified the modified Foxen such that it is provided with a first fluid-filled chamber disposed between the first plate and the first upper and a second fluid-filled chamber disposed between the second plate and the second upper in order to enhance the comfort and/or performance of the footwear, as suggested by Foxen (paras 4 and 32).
Regarding claim 6:
Foxen teaches The kit of Claim 1, as set forth above.
Foxen as applied to claim 1 above does not expressly disclose wherein the first sole structure includes a first fluid-filled chamber disposed between the first outsole and the first upper and the second sole structure includes a second fluid-filled chamber disposed between the second outsole and the second upper.
Nevertheless and in further view of Foxen:
Foxen teaches “Midsole 31 may include a fluid-filled chamber” (para 32). Foxen further teaches “In some articles of footwear, the midsole may include...additional footwear elements that enhance the comfort or performance of the footwear, including...fluid-filled chambers...any of these additional footwear elements may be located between the midsole and the upper, located between the midsole and the outsole, embedded within the midsole, or encapsulated by the foamed polymer material of the midsole, for example. Although many midsoles are primarily formed from a foamed polymer material, fluid-filled chambers or other non-foam structures may form a majority of some midsole configurations” (para 4).
It 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 to have modified the modified Foxen such that its first sole structure includes a first fluid-filled chamber disposed between the first outsole and the first upper and its second sole structure includes a second fluid-filled chamber disposed between the second outsole and the second upper in order to enhance the comfort and/or performance of the footwear, as suggested by Foxen (paras 4 and 32).
Claim(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over [Foxen, US 2016/0058122] in view of [Miner, US 2012/0042539, previously cited].
Foxen teaches The kit of Claim 3, as set forth above.
Foxen as applied to claim 3 above does not expressly disclose wherein the first plate and the first side support are more rigid than a material forming the first fluid-filled chamber and the second plate and the second side support are more rigid than a material forming the second fluid-filled chamber.
However, Miner teaches (Figs. 23-24) a footwear item (Abstract) comprising a fluid-filled chamber 2300 and a structure 2100 that is provided that is provided above and below the fluid-filled chamber 2300 (para 148; Figs. 23-24). Miner further teaches that structure 2100 “may be substantially more rigid than fluid filled member 2300...member 2100 may be substantially more rigid than fluid filled member 2300 in order to provide support for fluid filled member 2300” (para 153).
It 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 to have modified the modified Foxen such that the first plate and the first side support are more rigid than a material forming the first fluid-filled chamber and the second plate and the second side support are more rigid than a material forming the second fluid-filled chamber in order to provide support for the fluid filled member, as suggested by Miner (para 153).
Claim(s) 7-10 is/are rejected under 35 U.S.C. 103 as being unpatentable over [Foxen, US 2016/0058122] in view of [Rudy, US 4,219,945, previously cited].
Regarding claim 7:
Foxen teaches The kit of Claim 6, as set forth above.
Foxen as applied to claim 6 above does not expressly disclose wherein at least one of the first fluid-filled chamber and the second fluid-filled chamber is pressurized and/or includes a tensile member disposed therein.
However, Rudy teaches a sole structure (Abstract) wherein a fluid-filled chamber 10 (i.e. “inflated insert 10”; col. 3 line 31) is pressurized (col. 3 line 57; col. 3 line 67). Rudy further teaches that “inflating gas is introduced until...desired pressure...is reached” (col. 4 lines 7-9) and that a “desired pressure” is provided “in order to: achieve...dynamic responsive characteristics; tune the air spring to the size, stride and mass of the wearer’s body; or achieve...levels of comfort” (col. 5 line 66 – col. 6 line 2).
It 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 to have modified the modified Foxen such that its first fluid-filled chamber is pressurized and its second fluid-filled chamber is pressurized, as in Rudy, in order to achieve a desirable dynamic responsive characteristic and/or level of comfort afforded by each chamber, as suggested by Rudy (col. 5 line 66 – col. 6 line 2)
Regarding claim 8:
Foxen teaches The kit of Claim 6, as set forth above.
Foxen as applied to claim 6 above does not expressly disclose wherein the first fluid-filled chamber extends continuously and uninterrupted from the forefoot region of the first sole structure to a heel region of the first sole structure along the medial side and the second fluid-filled chamber extends continuously and uninterrupted from the forefoot region of the second sole structure to a heel region of the second sole structure along the lateral side.
However, Rudy teaches a sole structure (Abstract) wherein a fluid-filled chamber 10 (Figs. 1-3) (i.e. “inflated insert 10”; col. 3 line 31) extends continuously and uninterrupted (spaces 17 provide “intercommunicating passages” such that “pressurized fluid can flow freely between the chambers 15”; col. 3 lines 55-58) from a forefoot region of a sole structure to a heel region of the sole structure along a medial side (Figs. 1-3) of the sole structure and also from the forefoot region of the sole structure to the heel region of the sole structure along a lateral side (Figs. 1-3). Rudy is silent as to which side is lateral/medial; however, chamber 10 extends continuously and uninterrupted along both sides, as is evident in Figs. 1-3 wherein fluid is configured to flow freely as described in col. 3 lines 55-58).
Rudy further teaches the chamber is configured to “absorb shock loads and to cushion the foot” (col. 5 lines 52-54) and that the uninterrupted nature of extension is “so that the pressure in all chambers is the same at any instant” (col. 3 lines 58-59). Rudy further teaches that a “desired pressure” is provided “in order to: achieve...dynamic responsive characteristics; tune the air spring to the size, stride and mass of the wearer’s body; or achieve...levels of comfort” (col. 5 line 66 – col. 6 line 2).
It 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 to have modified the modified Foxen such that the first fluid-filled chamber extends continuously and uninterrupted from a forefoot region of the first sole structure to a heel region of the first sole structure along the medial side and extends continuously and uninterrupted from the forefoot region of the first sole structure to the heel region of the first sole structure along the lateral side and the second fluid-filled chamber extends continuously and uninterrupted from a forefoot region of the second sole structure to a heel region of the second sole structure along the lateral side and extends continuously and uninterrupted from the forefoot region of the second sole structure to the heel region of the second sole structure along the medial side in order to permit each chamber to absorb shock and/or cushion the foot at heel and toe regions of each respective sole structure along medial and lateral sides thereof, as suggested by Rudy (col. 5 lines 52-54) wherein the level of pressure is the same throughout heel and forefoot regions along lateral and medial sides thereof due to the uninterrupted and continuous extension in order to achieve the same level of comfort throughout heel and forefoot regions along lateral and medial sides thereof, as also suggested by Rudy (col. 3 lines 58-59; col. 5 line 66 – col. 6 line 2).
Regarding claim 9:
Foxen in view of Rudy teaches The kit of Claim 8, as set forth above.
As applied to claim 8 above, the modified Foxen does not expressly disclose wherein the first fluid-filled chamber includes at least one first weld extending from a lateral edge of the first fluid-filled chamber in a direction toward the medial side of the first sole structure and the second fluid-filled chamber includes at least one second weld extending from a medial edge of the second fluid-filled chamber in a direction toward the lateral side of the second sole structure.
Nevertheless and in further view of Rudy:
Rudy teaches providing welds 14 (i.e. “weld lines 14”; col. 3 line 53) wherein a first weld (see annotated Fig. 1 – a below) extends from a first edge (see annotated Fig. 1 – a below) of the fluid-filled chamber toward a second side (see annotated Fig. 1 – a below) of the sole structure and a second weld (see annotated Fig. 1 – a below) extending from a second edge (see annotated Fig. 1 – a below) of the fluid-filled chamber toward a first side (see annotated Fig. 1 – a below) of the sole structure.
Rudy is silent as to which side is medial and lateral; nonetheless, in Rudy, Rudy teaches a fluid-filled chamber includes a first weld extending from a lateral edge of the fluid-filled chamber in a direction toward the medial side of the sole structure a second weld extending from a medial edge of the fluid-filled chamber in a direction toward the lateral side of the sole structure because one of the edges of Rudy is a medial edge and the other of the edges of Rudy is a lateral edge.
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Rudy further teaches that the welds 14 are provided in such a way so as to “terminate at points 16 which are located under no-load bearing area of the wearer’s foot” and to provide “spaces 17 between the termination points” to “provide intercommunicating passages through which the pressurized fluid can flow freely...so that the pressure in all chambers is the same at any instant” (col. 3 lines 53-59).
It 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 to have modified the modified Foxen such that the first fluid-filled chamber includes a first plurality of welds including a first weld extending from a lateral edge of the first fluid-filled chamber in a direction toward the medial side of the first sole structure and a second weld extending from a medial edge of the first fluid-filled chamber in a direction toward the lateral side of the first sole structure and the second fluid-filled chamber includes a second plurality of welds including a second weld extending from a medial edge of the second fluid-filled chamber in a direction toward the lateral side of the second sole structure and a first weld extending from a lateral edge of the second fluid-filled chamber in a direction toward the medial side of the second sole structure in order to provide intercommunicating passages between areas of each fluid-filled chamber through spaces defined by termination points of the plurality of welds for the purpose of affording uniform pressure at the areas of the each respective chamber wherein said termination points are provided at areas of the shoe that do not experience significant loads, as taught by Rudy (col. 3 lines 53-59).
Regarding claim 10:
Foxen in view of Rudy teaches The kit of Claim 9, as set forth above.
As applied to claim 9 above, the modified Foxen does not expressly disclose wherein the first fluid-filled chamber and the second fluid-filled chamber are identical to one another.
However and in further view of Rudy:
Rudy as embodied in Figs. 1-3 is capable of accommodating either a left foot or a right foot thereon due to its peripheral edge being substantially symmetrical about a heel-forefoot axis, as evidenced by Fig. 1. As such, one of ordinary skill would expect the fluid-filled chamber as depicted in Fig. 1 could absorb shock and/or provide cushioning to a left foot another, identical, chamber could absorb shock and/or provide cushioning to a right foot.
It 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 to have modified the modified Foxen such that the first fluid-filled chamber and the second fluid-filled chamber are identical to one another in order to yield the predictable result of a kit whose constituent fluid-filled chambers can be made by the same parts and process for the purpose of manufacturing simplification – e.g. being able to utilize the same parts and process of manufacture for each chamber of the kit.
Claim(s) 11-16 is/are rejected under 35 U.S.C. 103 as being unpatentable over [Foxen, US 2016/0058122] in view of [Rudy, US 4,219,945, previously cited].
Regarding claim 11:
Foxen discloses (Figs. 1-6):
a first article of footwear 10 (i.e. “article of footwear 10”; para 27) including (i) a first upper 20 (i.e. “upper 20”; para 27), (ii) a first sole structure 30 (i.e. “sole structure 30”; para 27) having a first plate 32 (i.e. “outsole 32”; para 32) defining a first ground-contacting surface (para 32), and (iii) a first side support 86 (i.e. the one of “stability fins 86” “positioned on medial side 15” (para 40)) consisting of a side support 86 (i.e. the one of “stability fins 86” “positioned on medial side 15” (para 40)) extending between (Figs. 1-3) and connecting (Figs. 1-3) the first upper and the first plate (attention is drawn to paragraph [0035] of the present disclosure which states, in relevant part (emphasis provided by Examiner): “When an element or layer is referred to as being..."connected to,"...another element or layer, it may be directly on, engaged, connected, attached, or coupled to the other element or layer, or intervening elements or layers may be present.”) in a midfoot region 12 (i.e. “midfoot region 12”; para 27) of the first sole structure and beginning and terminating on a medial side 15 of the first article of footwear (para 40; Figs. 1-6); and
a second side support 86 (i.e. the one of “stability fins 86” “positioned on lateral side 14”; para 40) consisting of a side support 86 (i.e. the one of “stability fins 86” “positioned on lateral side 14”; para 40) extending between and connecting the first upper and the first plate in a midfoot region 12 (i.e. “midfoot region 12”; para 27) of the first sole structure and beginning and terminating on a lateral side 14 of the first article of footwear (para 40; Figs. 1-6).
Foxen Figs. 1-6 does not expressly disclose the first side support 86 is extending between and connecting the first upper and the first plate in a forefoot region of the first sole structure.
Rather, as explained above, first side support 86 is provided in the midfoot region 12 (para 40; Figs. 1-6).
Nevertheless and in further view of Foxen:
Foxen para 40 teaches (emphasis provided by Examiner): “Although depicted as being in a single position of midfoot region 12 on each of medial side 15 and lateral side 14, any number of stability fins 86 may be positioned anywhere along insert 80. Stability fins 86 may also be either concentrated in certain locations along insert 80 or distributed throughout insert 80.”
Foxen further teaches “Stability fins 86...provide stability to footwear 10 when placed under banking forces” (para 40).
It 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 to have modified the article of footwear of Foxen Figs. 1-6 such that it is provided with a first side support consisting of a side support extending between and connecting the first upper and the first plate in the forefoot region of the first sole structure and beginning and terminating on the medial side of the first article of footwear and also a second side support consisting of a side support extending between and connecting the first upper and the first plate in the forefoot region of the first sole structure and beginning and terminating on the lateral side of the first article of footwear to provide stability to the footwear when placed under banking forces at the forefoot region thereof, as suggested by Foxen (para 40).
In adopting the modification above, the first article of footwear comprises both a first side support consisting of a side support as claimed and also a second side support consisting of a side support extending between and connecting the first upper and the first plate in the forefoot region of the first sole structure and beginning and terminating on the lateral side of the first article of footwear.
Foxen does not expressly disclose the first sole structure having a first fluid-filled chamber disposed between the first plate and the first upper, the first fluid-filled chamber extending continuously and uninterrupted from a forefoot region of the first sole structure to a heel region of the first sole structure along a medial side of the first sole structure.
In further view of Foxen: Foxen teaches “Midsole 31 may include a fluid-filled chamber” (para 32). Foxen further teaches “In some articles of footwear, the midsole may include...additional footwear elements that enhance the comfort or performance of the footwear, including...fluid-filled chambers...any of these additional footwear elements may be located between the midsole and the upper, located between the midsole and the outsole, embedded within the midsole, or encapsulated by the foamed polymer material of the midsole, for example. Although many midsoles are primarily formed from a foamed polymer material, fluid-filled chambers or other non-foam structures may form a majority of some midsole configurations” (para 4).
Rudy teaches a sole structure (Abstract) wherein a fluid-filled chamber 10 (Figs. 1-3) (i.e. “inflated insert 10”; col. 3 line 31) extends continuously and uninterrupted (spaces 17 provide “intercommunicating passages” such that “pressurized fluid can flow freely between the chambers 15”; col. 3 lines 55-58) from a forefoot region of a sole structure to a heel region of the sole structure along a medial side (Figs. 1-3) of the sole structure and also from the forefoot region of the sole structure to the heel region of the sole structure along a lateral side (Figs. 1-3). Rudy is silent as to which side is lateral/medial; however, chamber 10 extends continuously and uninterrupted along both sides, as is evident in Figs. 1-3 wherein fluid is configured to flow freely as described in col. 3 lines 55-58).
Rudy further teaches the chamber is configured to “absorb shock loads and to cushion the foot” (col. 5 lines 52-54) and that the uninterrupted nature of extension is “so that the pressure in all chambers is the same at any instant” (col. 3 lines 58-59). Rudy further teaches that a “desired pressure” is provided “in order to: achieve...dynamic responsive characteristics; tune the air spring to the size, stride and mass of the wearer’s body; or achieve...levels of comfort” (col. 5 line 66 – col. 6 line 2).
It 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 to have modified the modified Foxen such that its first sole structure is provided with a first fluid-filled chamber disposed between the first plate and the first upper, the first fluid-filled chamber extending continuously and uninterrupted from a forefoot region of the first sole structure to a heel region of the first sole structure along a medial side of the first sole structure and also extending continuously and uninterrupted from the forefoot region of the first sole structure to the heel region of the first sole structure along a lateral side of the first sole structure in order to permit the chamber to absorb shock and/or cushion the foot at heel and toe regions of the sole structure along medial and lateral sides thereof, as suggested by Rudy (col. 5 lines 52-54) wherein the level of pressure is the same throughout heel and forefoot regions along lateral and medial sides thereof due to the uninterrupted and continuous extension in order to achieve the same level of comfort throughout heel and forefoot regions along lateral and medial sides thereof, as also suggested by Rudy (col. 3 lines 58-59; col. 5 line 66 – col. 6 line 2).
The modified Foxen as applied above does not meet the limitation:
A kit comprising:
a first article of footwear including (i) a first upper, (ii) a first sole structure having a first plate defining a first ground-contacting surface and a first fluid-filled chamber disposed between the first plate and the first upper, the first fluid-filled chamber extending continuously and uninterrupted from a forefoot region of the first sole structure to a heel region of the first sole structure along a medial side of the first sole structure, and (iii) a first side support consisting of a side support extending between and connecting the first upper and the first plate in the forefoot region of the first sole structure and beginning and terminating on a medial side of the first article of footwear; and
a second article of footwear including (i) a second upper, (ii) a second sole structure having a second plate defining a second ground-contacting surface and a second fluid-filled chamber disposed between the second plate and the second upper, the second fluid-filled chamber extending continuously and uninterrupted from a forefoot region of the second sole structure to a heel region of the second sole structure along a lateral side of the second sole structure, and (iii) a second side support consisting of a side support extending between and connecting the second upper and the second plate in the forefoot region of the second sole structure and beginning and terminating on a lateral side of the second article of footwear.
Nevertheless and in further view of Foxen:
Foxen as embodied in Figs. 7-9 teaches a “wearer 1000” (para 50) wearing a kit (i.e. both articles of footwear 10) comprising a first article of footwear 10 (i.e. one of 10; Figs. 7-9) and a second article of footwear 10 (Figs. 7-8).
It 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 to have modified the modified Foxen such that it is provided in duplicate, thereby yielding a kit comprising a first article and a second article, in order to yield a kit comprising two articles of footwear wherein the first article can be worn by a first foot and wherein the second article can be worn by a second foot, as suggested by Foxen Figs. 7-9.
In adopting the modification, the limitation “a second article of footwear including (i) a second upper, (ii) a second sole structure having a second plate defining a second ground-contacting surface and a second fluid-filled chamber disposed between the second plate and the second upper, the second fluid-filled chamber extending continuously and uninterrupted from a forefoot region of the second sole structure to a heel region of the second sole structure along a lateral side of the second sole structure, and (iii) a second side support consisting of a side support extending between and connecting the second upper and the second plate in the forefoot region of the second sole structure and beginning and terminating on a lateral side of the second article of footwear” would be met insofar as both first and second articles of footwear would each have a first side support extending between and connecting each respective upper and each respective plate in a forefoot region of each respective sole structure and beginning and terminating on a medial side of each respective article of footwear and also a second side support extending between and connecting each respective upper and each respective plate in a forefoot region of each respective sole structure and beginning and terminating on a lateral side of each respective article of footwear. In other words, the first side support consisting of a side support of the first article of footwear of the modified Foxen would be the first side support of claim 11 lines 6-9 and the second side support consisting of a side support of the second article of footwear of the modified Foxen would be the second side support of claim 11 lines 14-17.
Regarding claim 12:
Foxen in view of Rudy teach The kit of claim 11, as set forth above.
As applied to claim 11 above, the modified Foxen does not expressly disclose wherein the first fluid-filled chamber includes at least one first weld extending from a lateral edge of the first fluid-filled chamber in a direction toward the medial side of the first sole structure.
Nevertheless and in further view of Rudy:
Rudy teaches providing welds 14 (i.e. “weld lines 14”; col. 3 line 53) wherein a first weld (see annotated Fig. 1 – a below) extends from a first edge (see annotated Fig. 1 – a below) of the fluid-filled chamber toward a second side (see annotated Fig. 1 – a below) of the sole structure and a second weld (see annotated Fig. 1 – a below) extending from a second edge (see annotated Fig. 1 – a below) of the fluid-filled chamber toward a first side (see annotated Fig. 1 – a below) of the sole structure.
Rudy is silent as to which side is medial and lateral; nonetheless, in Rudy, Rudy teaches a fluid-filled chamber includes a first weld extending from a lateral edge of the fluid-filled chamber in a direction toward the medial side of the sole structure a second weld extending from a medial edge of the fluid-filled chamber in a direction toward the lateral side of the sole structure because one of the edges of Rudy is a medial edge and the other of the edges of Rudy is a lateral edge.
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Rudy further teaches that the welds 14 are provided in such a way so as to “terminate at points 16 which are located under no-load bearing area of the wearer’s foot” and to provide “spaces 17 between the termination points” to “provide intercommunicating passages through which the pressurized fluid can flow freely...so that the pressure in all chambers is the same at any instant” (col. 3 lines 53-59).
It 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 to have modified the modified Foxen such that the first fluid-filled chamber includes a first plurality of welds including a first weld extending from a lateral edge of the first fluid-filled chamber in a direction toward the medial side of the first sole structure and a second weld extending from a medial edge of the first fluid-filled chamber in a direction toward the lateral side of the first sole structure and the second fluid-filled chamber includes a second plurality of welds including a second weld extending from a medial edge of the second fluid-filled chamber in a direction toward the lateral side of the second sole structure and a first weld extending from a lateral edge of the second fluid-filled chamber in a direction toward the medial side of the second sole structure in order to provide intercommunicating passages between areas of each fluid-filled chamber through spaces defined by termination points of the plurality of welds for the purpose of affording uniform pressure at the areas of the each respective chamber wherein said termination points are provided at areas of the shoe that do not experience significant loads, as taught by Rudy (col. 3 lines 53-59).
Regarding claim 13:
Foxen in view of Rudy teach The kit of claim 12, as set forth above.
The modified Foxen as applied to claim 12 further meets the limitation wherein the second fluid-filled chamber includes at least one second weld extending from a medial edge of the second fluid-filled chamber in a direction toward the lateral side of the second sole structure (refer to above treatment of claim 12 wherein a modification results in the second fluid-filled chamber includes a second weld extending as claimed).
Regarding claim 14:
Foxen in view of Rudy teach The kit of claim 11, as set forth above.
As applied to claim 11 above, the modified Foxen does not expressly disclose wherein the second fluid-filled chamber includes at least one second weld extending from a medial edge of the second fluid-filled chamber in a direction toward the lateral side of the second sole structure.
Nevertheless and in further view of Rudy:
Rudy teaches providing welds 14 (i.e. “weld lines 14”; col. 3 line 53) wherein a first weld (see annotated Fig. 1 – a below) extends from a first edge (see annotated Fig. 1 – a below) of the fluid-filled chamber toward a second side (see annotated Fig. 1 – a below) of the sole structure and a second weld (see annotated Fig. 1 – a below) extending from a second edge (see annotated Fig. 1 – a below) of the fluid-filled chamber toward a first side (see annotated Fig. 1 – a below) of the sole structure.
Rudy is silent as to which side is medial and lateral; nonetheless, in Rudy, Rudy teaches a fluid-filled chamber includes a first weld extending from a lateral edge of the fluid-filled chamber in a direction toward the medial side of the sole structure a second weld extending from a medial edge of the fluid-filled chamber in a direction toward the lateral side of the sole structure because one of the edges of Rudy is a medial edge and the other of the edges of Rudy is a lateral edge.
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Rudy further teaches that the welds 14 are provided in such a way so as to “terminate at points 16 which are located under no-load bearing area of the wearer’s foot” and to provide “spaces 17 between the termination points” to “provide intercommunicating passages through which the pressurized fluid can flow freely...so that the pressure in all chambers is the same at any instant” (col. 3 lines 53-59).
It 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 to have modified the modified Foxen such that the first fluid-filled chamber includes a first plurality of welds including a first weld extending from a lateral edge of the first fluid-filled chamber in a direction toward the medial side of the first sole structure and a second weld extending from a medial edge of the first fluid-filled chamber in a direction toward the lateral side of the first sole structure and the second fluid-filled chamber includes a second plurality of welds including a second weld extending from a medial edge of the second fluid-filled chamber in a direction toward the lateral side of the second sole structure and a first weld extending from a lateral edge of the second fluid-filled chamber in a direction toward the medial side of the second sole structure in order to provide intercommunicating passages between areas of each fluid-filled chamber through spaces defined by termination points of the plurality of welds for the purpose of affording uniform pressure at the areas of the each respective chamber wherein said termination points are provided at areas of the shoe that do not experience significant loads, as taught by Rudy (col. 3 lines 53-59).
Regarding claim 15:
Foxen in view of Rudy teaches The kit of Claim 11, as set forth above.
The modified Foxen as applied to claim 11 above does not expressly disclose wherein at least one of the first fluid-filled chamber and the second fluid-filled chamber is pressurized and/or includes a tensile member disposed therein.
However, and in further view of Rudy: Rudy teaches a sole structure (Abstract) wherein a fluid-filled chamber 10 (i.e. “inflated insert 10”; col. 3 line 31) is pressurized (col. 3 line 57; col. 3 line 67). Rudy further teaches that “inflating gas is introduced until...desired pressure...is reached” (col. 4 lines 7-9) and that a “desired pressure” is provided “in order to: achieve...dynamic responsive characteristics; tune the air spring to the size, stride and mass of the wearer’s body; or achieve...levels of comfort” (col. 5 line 66 – col. 6 line 2).
It 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 to have modified the modified Foxen such that its first fluid-filled chamber is pressurized and its second fluid-filled chamber is pressurized, as in Rudy, in order to achieve a desirable dynamic responsive characteristic and/or level of comfort afforded by each chamber, as suggested by Rudy (col. 5 line 66 – col. 6 line 2).
Regarding claim 16:
Foxen in view of Rudy teaches The kit of Claim 11, as set forth above.
As applied to claim 11 above, the modified Foxen does not expressly disclose wherein the first fluid-filled chamber and the second fluid-filled chamber are identical to one another.
However and in further view of Rudy:
Rudy as embodied in Figs. 1-3 is capable of accommodating either a left foot or a right foot thereon due to its peripheral edge being substantially symmetrical about a heel-forefoot axis, as evidenced by Fig. 1. As such, one of ordinary skill would expect the fluid-filled chamber as depicted in Fig. 1 could absorb shock and/or provide cushioning to a left foot another, identical, chamber could absorb shock and/or provide cushioning to a right foot.
It 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 to have modified the modified Foxen such that the first fluid-filled chamber and the second fluid-filled chamber are identical to one another in order to yield the predictable result of a kit whose constituent fluid-filled chambers can be made by the same parts and process for the purpose of manufacturing simplification – e.g. being able to utilize the same parts and process of manufacture for each chamber of the kit.
Claim(s) 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over [Foxen, US 2016/0058122] and [Rudy, US 4,219,945, previously cited] as applied to claim 11 above, and further in view of [Miner, US 2012/0042539, previously cited].
Foxen in view of Rudy teaches The kit of Claim 11, as set forth above.
Foxen and Rudy as applied to claim 11 above does not expressly disclose wherein the first plate and the first side support are more rigid than a material forming the first fluid-filled chamber and the second plate and the second side support are more rigid than a material forming the second fluid-filled chamber.
However, Miner teaches (Figs. 23-24) a footwear item (Abstract) comprising a fluid-filled chamber 2300 and a structure 2100 that is provided that is provided above and below the fluid-filled chamber 2300 (para 148; Figs. 23-24). Miner further teaches that structure 2100 “may be substantially more rigid than fluid filled member 2300...member 2100 may be substantially more rigid than fluid filled member 2300 in order to provide support for fluid filled member 2300” (para 153).
It 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 to have modified the modified Foxen such that the first plate and the first side support are more rigid than a material forming the first fluid-filled chamber and the second plate and the second side support are more rigid than a material forming the second fluid-filled chamber in order to provide support for the fluid filled member, as suggested by Miner (para 153).
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GRADY A NUNNERY whose telephone number is (571)272-2995. The examiner can normally be reached 8-5 M-F.
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/G.A.N./Examiner, Art Unit 3732
/KHOA D HUYNH/Supervisory Patent Examiner, Art Unit 3732
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