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 .
DETAILED ACTION
Response to Amendment
Applicant’s amendment filed February 6, 2026 has been received, Claims 1-3, 7, 11-20 are currently pending, with Claims 14-15 and 19-20 remaining withdrawn from prosecution at this time.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
1. Claim(s) 1-3, 7, and 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Stoll (US 5,284,031) in view of Anand (US 2012/0129416).
Regarding Claim 1, Stoll discloses a knit fabric structure comprising: a first knit fabric layer (11.3) comprising a first plurality of interlocked yarn loops extending in a wale direction of the first knit fabric layer and in a course direction of the first knit fabric layer (Col.4-6, Claims 1 & 2; i.e. it is well known in the knitting art that a knit layer has interlocked loops in both the wale and course directions); a second knit fabric layer (12.3) that is separate and distinct from the first knit fabric layer and comprises a second plurality of interlocked yarn loops extending in a wale direction of the second knit fabric layer and in a course direction of the second knit fabric layer (Col.4-6, Claims 1 & 2; i.e. it is well known in the knitting art that a knit layer has interlocked loops in both the wale and course directions); and a resilient intermediate knit fabric layer (13.3) disposed between and separate and distinct from the first knit fabric layer and the second knit fabric layer (as seen in Fig.3), the intermediate knit fabric layer comprising a third plurality of interlocked yarn loops extending in a wale direction of the intermediate knit fabric layer and in a course direction of the intermediate knit fabric layer (Col.4-6, Claims 1 & 2; i.e. it is well known in the knitting art that a knit layer has interlocked loops in both the wale and course directions), wherein at least some of the interlocked yarn loops of the third plurality are located between and do not couple with the first knit fabric layer and the second knit fabric layer (as seen in Fig.3, some of the loops of 13.3 would not be coupled to 11.3 or 12.3); wherein the intermediate knit fabric layer has a corrugated shape along a first direction of the intermediate knit fabric layer with consecutive peaks that are oriented in opposing directions such that the peaks comprise a set of first peaks (peaks at 15 adjacent 11.3) oriented in a first peak direction and a set of second peaks (peaks at 15 adjacent 12.3) oriented in a second peak direction that opposes the first peak direction (as seen in Fig.3), yarn loops (15) forming the first peaks of the intermediate knit fabric layer connect with yarn loops forming the first knit fabric layer and yarn loops forming the second peaks of the intermediate knit fabric layer connect with yarn loops forming the second knit fabric layer (Col.1, lines 26-43 & Col.2, lines 49-55); wherein the intermediate knit fabric layer connects with the first knit fabric layer via stitches at the first peaks, the intermediate knit fabric layer connects with the second knit fabric layer via stitches at the second peaks, and a distance D1 between consecutive first and second peaks along the intermediate knit fabric layer and defined by a first stitch at a first peak of the intermediate knit fabric layer and a second stitch at a second peak of the intermediate knit layer (Col.1, lines 26-43 & Col.2, lines 49-55; as seen in Fig.3); a distance D2 between first stitches of consecutive first peaks connecting the intermediate knit fabric layer with the first knit fabric layer and a distance D2 between second stitches of consecutive second peaks connecting the intermediate knit fabric layer with the second knit fabric layer (Col.1, lines 26-43 & Col.2, lines 49-55; as seen in Fig.3).
Stoll does not explicitly disclose the distance D1 between consecutive first and second peaks along the intermediate knit fabric layer and defined by a first stitch at a first peak of the intermediate knit fabric layer and a second stitch at a second peak of the intermediate knit layer is from about 3 courses to about 6 courses along each of the first and second knit fabric layers. However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the distance between the first peak and the second peak of Stoll to be about 3 courses to about 6 courses along each of the first and second knit fabric layers, in order to provide the desired level of cushioning and breathability to the user. Further, the claimed values are merely an optimum or workable range and it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. See MPEP 2144.05.
Stoll does not explicitly disclose wherein a distance D2 between first stitches of consecutive first peaks connecting the intermediate knit fabric layer with the first knit fabric layer is from about 6 courses to about 12 courses along the first knit fabric layer; a distance D2 between second stitches of consecutive second peaks connecting the intermediate knit fabric layer with the second knit fabric layer is from about 6 courses to about 12 courses along the second knit fabric layer. However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the distance between the consecutive first and second peaks of Stoll to be about 6 courses to about 12 courses along the first and second knit fabric layers, in order to provide the desired level of cushioning and breathability to the user. Further, the claimed values are merely an optimum or workable range and it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. See MPEP 2144.05.
Stoll discloses the invention substantially as claimed above. Stoll does not explicitly disclose wherein the knit fabric structure exhibits a Poisson’s ratio that is negative in response to stretching of the knit fabric structure in the first direction of the intermediate knit fabric layer such that the knit fabric structure expands in a direction transverse the first direction of the intermediate knit fabric layer in response to a stretching force being applied to the knit fabric structure in the first direction of the intermediate knit fabric layer. However, Anand teaches a knit fabric structure that exhibits a Poisson’s ratio that is negative in response to stretching of the knit fabric structure in the first direction such that the knit fabric structure expands in a direction transverse the first direction of the intermediate knit fabric layer in response to a stretching force being applied to the knit fabric structure in the first direction of the intermediate knit fabric layer (Abstract & Para.128).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the knit structure of Stoll to have an auxetic knit structure with a Poisson’s ratio that is negative in response to stretching of the knit fabric structure in a first direction, as taught by Anand, in order to provide a knit fabric with enhanced dimensional stability. When in combination, Stoll and Anand teach a knit fabric structure with a Poisson’s ratio that is negative in response to stretching of the knit fabric structure in the first direction of the intermediate knit fabric layer such that the knit fabric structure expands in a direction transverse the first direction of the intermediate knit fabric layer in response to a stretching force being applied to the knit fabric structure in the first direction of the intermediate knit fabric layer.
Regarding Claim 2, Stoll discloses a knit fabric of claim 1, wherein the first knit fabric layer and second knit fabric layer couple with each other only via the resilient intermediate knit fabric layer (Col.1, lines 26-43 & Col.2, lines 49-55).
Regarding Claim 3, Stoll discloses a knit fabric structure of claim 1, wherein the wale direction for the first knit fabric layer is aligned with the wale direction for the second knit fabric layer, and the wale direction of the intermediate knit fabric layer is transverse the wale direction for each of the first and second knit fabric layers (as seen in Fig.3; i.e. the substantially vertically oriented wales of 13.3 are transverse to the horizontally oriented wales of 11.3 and 12.3).
Regarding Claim 7, Stoll discloses a knit fabric structure comprising: a first knit fabric layer (11.3) comprising a first plurality of interlocked yarn loops extending in a wale direction of the first knit fabric layer and in a course direction of the first knit fabric layer (Col.4-6, Claims 1 & 2; i.e. it is well known in the knitting art that a knit layer has interlocked loops in both the wale and course directions); a second knit fabric layer (12.3) that is separate and distinct from the first knit fabric layer and comprises a second plurality of interlocked yarn loops extending in a wale direction of the second knit fabric layer and in a course direction of the second knit fabric layer (Col.4-6, Claims 1 & 2; i.e. it is well known in the knitting art that a knit layer has interlocked loops in both the wale and course directions); and a resilient intermediate knit fabric layer (13.3) disposed between and separate and distinct from the first knit fabric layer and the second knit fabric layer (as seen in Fig.3), the intermediate knit fabric layer comprising a third plurality of interlocked yarn loops extending in a wale direction of the intermediate knit fabric layer and in a course direction of the intermediate knit fabric layer (Col.4-6, Claims 1 & 2; i.e. it is well known in the knitting art that a knit layer has interlocked loops in both the wale and course directions), wherein at least some of the interlocked yarn loops of the third plurality are located between and do not couple with the first knit fabric layer and the second knit fabric layer (as seen in Fig.3, some of the loops of 13.3 would not be coupled to 11.3 or 12.3); wherein the intermediate knit fabric layer has a corrugated shape along a first direction of the intermediate knit fabric layer with consecutive peaks that are oriented in opposing directions such that the peaks comprise a set of first peaks (peaks at 15 adjacent 11.3) oriented in a first peak direction and a set of second peaks (peaks at 15 adjacent 12.3) oriented in a second peak direction that opposes the first peak direction (as seen in Fig.3), yarn loops (15) forming the first peaks of the intermediate knit fabric layer connect with yarn loops forming the first knit fabric layer and yarn loops forming the second peaks of the intermediate knit fabric layer connect with yarn loops forming the second knit fabric layer (Col.1, lines 26-43 & Col.2, lines 49-55); the intermediate knit fabric layer has a first elongation value in the first direction (i.e. being stretched along the longitudinal length of 13.3) of the intermediate knit fabric layer and a second elongation value in a second direction (i.e. being stretched along height of corrugations) of the intermediate knit fabric layer that is transverse the first direction, and the first elongation value is greater than the second elongation value (i.e. the elongation of 13.3 would be greater along the longitudinal length of 13.3 than along the height of the corrugated sections, as the distance 13.3 can stretch along each corrugated section is shorter than the distance 13.3 can stretch along the longitudinal length of 13.3). Stoll does not disclose each of the first and second knit fabric layers stretches in the second direction of the intermediate knit fabric layer in response to a stretching force being applied to the knit fabric structure in the first direction of the intermediate knit fabric layer. However, Anand teaches a knit fabric structure that exhibits a Poisson’s ratio that is negative in response to stretching of the knit fabric structure in the first direction such that the knit fabric structure expands in a direction transverse the first direction of the intermediate knit fabric layer in response to a stretching force being applied to the knit fabric structure in the first direction of the intermediate knit fabric layer (Abstract & Para.128).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the first and second knit fabric layers of Stoll to have an auxetic knit structure with a Poisson’s ratio that is negative in response to stretching of the knit fabric structure in a first direction, as taught by Anand, in order to provide a knit fabric with enhanced dimensional stability. When in combination, Stoll and Anand teach the first and second knit fabric layers with a Poisson’s ratio that is negative, such that each of the first and second knit fabric layers stretches in the second direction of the intermediate knit fabric layer in response to a stretching force being applied to the knit fabric structure in the first direction of the intermediate knit fabric layer.
Regarding Claim 12, Stoll discloses a knit fabric structure of claim 1, wherein the knit fabric structure is a flat knit structure (as seen in Fig.3); and the course direction of each knit fabric layer is generally orthogonal to the wale direction of the knit fabric layer (i.e. it is well known in the knitting art that the course direction of a knit fabric is orthogonal to the wale direction of the fabric, as they run in transverse directions to one another).
2. Claim(s) 11, 13, and 16-18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Stoll (US 5,284,031) and Anand (US 2012/0129416) in view of Shiomura (US 4,785,558).
Regarding Claim 11, Stoll and Anand disclose the invention substantially as claimed above. Stoll does not explicitly disclose the intermediate knit fabric layer is formed of yarns comprising elastane. However, Anand teaches a knit material using a yarn that comprises elastane (para.73; double covered lycra).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have substituted the elastic yarn of Shimura for the elastane yarn of Anand, as a simple substitution of one well known elastic yarn for another, in order to yield the predictable result of providing a yarn with stretch. When in combination, Stoll and Anand teach the intermediate knit layer is formed of double covered yarns.
Stoll and Anand disclose the invention substantially as claimed above. Stoll does not disclose wherein the first knit fabric layer and the second knit fabric layer are formed of yarns comprising polyester. However, Shiomura discloses a knit fabric wherein the first knit fabric layer (4) and the second knit fabric layer (5) are formed of yarns (41,42) comprising polyester (Col.2, lines 45-47), and the intermediate knit layer (7) is formed of yarns comprising elasticity (Col.2, lines 55-65).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have substituted the first and second knit fabric layer yarns of Shimura for the polyester yarn of Shiomura, as a simple substitution of one well known durable yarn for another, in order to yield the predictable result of providing a durable yarn. Further, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. See MPEP 2144.07.
Regarding Claim 13, Anand further teaches a knit material wherein an intermediate knit layer is formed of double covered yarns, wherein elastane forms a core of each double covered yarn (para.73; double covered lycra). When in combination, Stoll and Anand teach the intermediate knit layer is formed of double covered yarns.
Regarding Claim 16, Stoll and Anand disclose the invention substantially as claimed above. Stoll does not explicitly disclose an article of footwear comprising the knit fabric structure of claim 1. However, Shiomura teaches a shoe formed of knit fabric (Abstract).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have used to knit fabric of Stoll to form a shoe upper, as taught by Shiomura, in order to provide a comfortable fabric for surrounding a user’s foot.
Regarding Claim 17, Stoll further teaches an article of footwear of claim 16, further comprising: a sole structure (2); and an upper comprising a lateral side (i.e. lateral side), a medial side (i.e. medial side), a toe cage section (i.e. toe region) located proximate a toe end of the upper, a collar section (i.e. area surrounding the foot opening) located proximate a heel end of the upper, and an instep section (i.e. midfoot region) located between the lateral and medial sides and also between the toe cage section and the collar section. When in combination, Stoll and Shiomura teach wherein the knit fabric structure (of Stoll) is provided at one or more of the instep section and the collar section (Shiomura: as seen in Fig.1, fabric 1 is provided along the entire upper).
Regarding Claim 18, When in combination, Stoll and Shiomura teach an article of footwear of claim 17, wherein the knit fabric structure (of Stoll) is provided at a first location (Shiomura: i.e. medial side) and a second location (Shiomura: i.e. lateral side) along the upper such that a first orientation (Shiomura: i.e. positioned on the medial side) of the first direction of the intermediate knit fabric layer (of Stoll) for the knit fabric structure at the first location differs from a second orientation (Shiomura: i.e. positioned on the lateral side) of the first direction of the intermediate knit fabric layer for the knit fabric structure at the second location (i.e. the first and second orientations of Shiomura differ, inasmuch as has been claimed by Applicant, in that they are on different, opposite sides of the shoe upper).
Response to Arguments
Applicant's arguments filed February 6, 2026 have been fully considered but they are not persuasive.
3. Applicant’s Remarks: Applicant asserts there is no teaching or suggestion by Stoll of the features of claim 1 with regard to the distances D1 and D2, measured as courses along first and second knit fabric layers or the intermediate knit fabric layer in which peaks of the intermediate fabric layer connects with the first and second knit fabric layers. Further arguing, there is no indication by Stoll or any other reference relied upon by the Examiner that connection of peaks of the intermediate layer in distances measured as courses along the first and second knit fabric layers is a result-effective variable that would modify, change or create a desired level of cushioning and breathability to the user as alleged by the Examiner. Such cushioning and breathability features could be achieved in a variety of different ways based upon the make-up of the layers (e.g., layer thicknesses, parameters of the yarns forming the knit layers, etc.) rather than at what locations the intermediate knit layer secures to each outer knit layer. Instead, one skilled in the art would not have selected such course spacing ranges absent improper hindsight and reliance upon the claimed invention.
Examiner’s Response: Examiner respectfully disagrees and notes that Stoll clearly shows that there is a distance D1, measured as courses, between consecutive first and second peaks along the intermediate knit fabric layer and defined by a first stitch at a first peak of the intermediate knit fabric layer and a second stitch at a second peak of the intermediate knit layer and a distance D2, measured as courses, between first stitches of consecutive first peaks connecting the intermediate knit fabric layer with the first knit fabric layer and a distance D2 between second stitches of consecutive second peaks connecting the intermediate knit fabric layer with the second knit fabric layer (Col.1, lines 26-43 & Col.2, lines 49-55; as seen in Fig.3). Therefore, Stoll discloses the result effective variable(s) and a determination of the optimum or workable ranges of the variable is routine experimentation. Further, one of ordinary skill in the art would recognize that a change in the distances would affect both the cushioning and breathability properties of the overall fabric. Simply because Applicant details that such attributes would be achieved in other, different ways, does not negate the fact that the attributes are also delivered by the modification detailed in the Office Action. For all these reasons, Applicant’s arguments are not found persuasive.
4. Applicant’s Remarks: Applicant submits that it is unclear how Anand, which teaches a knit structure completely different from that which is claimed and also that which is described by Stoll, would modify Stoll so as to have the structural features of claim 1 (in which the knit layers are connected together to achieve the auxetic properties as claimed). Clearly, the auxetic properties imparted to a fabric structure as taught by Anand are achieved in a significantly different manner than that which is described and claimed by the present Application. Further still, the Application clearly sets forth (paragraphs [0034], [0044 - 0047], [0054]) that the course spacing at which peaks of the intermediate layer connect with each of the outer knit layers can be set (in the ranges as claimed) so as to achieve the desired negative Poisson (auxetic) effect for the overall knit structure. This is not taught, suggested or recognized at all by Stoll or any of the other cited art.
Examiner’s Response: Examiner respectfully disagrees. Anand is merely used to modify one or more of the distinct layers of Stoll, as Anand teaches a distinct knit layer, it would be abundantly clear to one of ordinary skill in the art to modify the knit pattern of Stoll to be an auxetic pattern in order to provide a knit fabric with enhanced dimensional stability. Applicant’s argument that the course spacing at which peaks of the intermediate layer connect with each of the outer knit layers, achieves the desired negative Poisson (auxetic) effect for the overall knit structure is moot, as such structure is not currently claimed. Even if the auxetic properties are solely attributed to the course spacing, which does not appear to be the case, it would have still been obvious to modify the course spacing to achieve such structure. For all these reasons, Applicant’s arguments are not found persuasive.
5. Applicant’s Remarks: Applicant asserts Claim 18 recites that the first and second orientations are based upon the first direction of the intermediate knit fabric structure (i.e., the direction of the corrugated shape of the intermediate knit layer). With no description provided by Shiomura of orienting and combining two fabric portions of the knit fabric structure in different orientations with each other, one cannot assume that Shiomura teaches the features of claim 18. In such an embodiment, the orientation of the fabric structure (e.g., if it includes multiple layers, such as that described by Stoll or as claimed) is the same along all portions of the upper (lateral, medial, toe cage, heel cup, etc.).
Examiner’s Response: Examiner respectfully disagrees and notes that as currently claimed, Shiomura teaches the claim limitations with regard to the fabric orientations (see rejection above and previous rejection). Applicant in no way claims how the orientations are different from one another and if Applicant desires a different interpretation of such features, then Applicant must explicitly claim structure that shows how the orientations are different from one another. For all these reasons, Applicant’s argument is not found persuasive.
6. Applicant’s Remarks: Applicant submits, regarding claim 10, that there is nothing in Stoll that indicates the knit layers 11.3, 12.3 are capable of being stretched both widthwise and lengthwise at the same time, let alone whether this would hold true when the third knit layer 13.3 is stretched in the direction of its corrugation.
Examiner’s Response: Examiner respectfully disagrees and notes that such limitations are no longer claimed as Claim 10 was cancelled and its limitations are not recited in Claim 7 as asserted by Applicant. Therefore, Applicant’s argument is moot.
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 MEGAN E LYNCH whose telephone number is (571)272-3267. The examiner can normally be reached Monday to Friday, 8:00am-4:00pm EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Khoa Huynh can be reached at 571-272-4888. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MEGAN E LYNCH/Primary Examiner, Art Unit 3732
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