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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 03/30/2026 has been entered.
Response to Amendment
Applicant’s amendment of 03/30/2026 is acknowledged.
Claims 1-7, 9-10, 15-17, and 21-28 are presented.
Claims 1 and 10 are presented in independent form and are amended.
Claim 23 was previously withdrawn.
The present office action treats claims 1-7, 9-10, 15-17, 21-22 and 24-28 on the merits.
The present office action is a non-final rejection.
Response to Arguments
Applicant’s REMARKS of 03/30/2026 (see p. 7-9 of the reply) is acknowledged.
Regarding Section 112 Rejections (p. 7): Applicant’s arguments are fully considered and are persuasive. Specifically, applicant’s amendment overcomes the 35 USC 112 rejections as applied in the previous office action.
Regarding Prior art Rejections (p. 7-9): Applicant’s arguments are fully considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Claim Objections
Claims 4 and 23 are objected to because of the following informalities:
Claim 4 line 1: “the outsole plate includes;” should be --the outsole plate includes:--
Claim 23 is objected to because its status identifier is incorrect; claim 23 is withdrawn (see the Office action of 05/29/2025; p. 2 lines 13-18).
Appropriate correction is required.
Claim Rejections - 35 USC § 102
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, 3-6, 9, and 21 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by [McClelland, US 5,775,005, newly cited].
Regarding claim 1:
McClelland discloses (Figs. 1-5):
A sole structure 14 for an article of footwear 10, the sole structure comprising:
a forefoot region (see annotated Figs. 3-4 – a below) and a heel region (see annotated Figs. 3-4 – a below);
a chassis plate 36 disposed solely in the forefoot region and a mid-foot region (as in annotated Figs. 3-4 – a below);
an outsole plate 24 extending between the forefoot region and the heel region (as in annotated Figs. 3-4 – a below), the outsole plate 24 including a recess (see annotated Figs. 3-4 – a below) disposed in a top surface (see annotated Figs. 3-4 – a below) and the recess extending through the outsole plate such that a bottom surface of the recess (see annotated Figs. 3-4 – a below) forms a portion of a ground-contacting surface of the outsole plate (as in annotated Figs. 3-4 – a below), wherein one or more cleats 50 (i.e. those cleats 50 on bottom surface of recess; see annotated Figs. 3-4 – a below; it is noted the section view of Fig. 4 does not show these cleats, yet they are shown in Fig. 3) are disposed on the bottom surface of the recess (see annotated Figs. 3-4 – a below), and wherein the outsole plate 24 is disposed below the chassis plate (Figs. 3-4); and
a cushioning element 32 disposed within the recess (as in annotated Figs. 3-4 – a below).
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Regarding claim 3:
McClelland discloses The sole structure of claim 1, as set forth above.
McClelland further discloses wherein a top surface of the cushioning element is flush with the top surface of the outsole plate when the cushioning element is disposed within the recess (as in annotated Figs. 3-4 – a presented in above addressing of claim 1).
Regarding claim 4:
McClelland discloses The sole structure of claim 1, as set forth above.
McClelland further discloses wherein the outsole plate includes;
a bottom surface (i.e. the surface of the plate that forms the ground-contacting surface of the sole structure; attention is drawn to the present disclosure which states a “lower surface...of the outsole plate...may form the ground-engaging surface...and may...include a corresponding...face...of the recess”; para [0051] as filed); and
a plurality of traction elements 50 disposed on the bottom surface of the outsole plate (wherein it is noted that McClelland comprises many elements 50 (Figs. 1-4) such that one or more of elements 50 is the one or more cleats of claim 1 and that two or more other elements 50 are the plurality of traction elements of claim 4).
Regarding claim 5:
McClelland discloses The sole structure of claim 4, as set forth above.
McClelland further discloses wherein the plurality of traction elements are integrally molded into the bottom surface of the outsole plate (traction elements 50 are integral with the bottom surface; Figs. 1-4; the limitation “are integrally molded into” is treated as a product-by-process limitation such that he claimed product appears to be the same or similar to that of the prior art although produced by a process that is silent as to whether said process includes molding; attention is drawn to MPEP 2113 which states “Once the examiner provides a rationale tending to show that the claimed product appears to be the same or similar to that of the prior art, although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an nonobvious difference between the claimed product and the prior art product.”)
Regarding claim 6:
McClelland discloses The sole structure of claim 1, as set forth above.
McClelland further discloses wherein a bottom surface of the outsole plate (i.e. the surface of the plate that forms the ground-contacting surface of the sole structure; attention is drawn to the present disclosure which states a “lower surface...of the outsole plate...may form the ground-engaging surface...and may...include a corresponding...face...of the recess”; para [0051] as filed) forms a ground-contacting surface of the sole structure (Figs. 1-4).
Regarding claim 9:
McClelland discloses The sole structure of claim 1, as set forth above.
McClelland further discloses An article of footwear 10 comprising the sole structure of claim 1.
Regarding claim 21:
McClelland discloses The sole structure of claim 1, as set forth above.
McClelland further discloses wherein the cushioning element extends outwardly from its center toward an anterior segment, a posterior segment, a lateral segment, and a medial segment (Figs. 3-4).
Claim(s) 10 and 16 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by [Sgarlato, US 4,100,686, newly cited].
Regarding claim 10:
Sgarlato discloses (Figs. 1-2):
A sole structure 20 for an article of footwear (col. 2 lines 3-5), the sole structure comprising:
a forefoot region (see annotated Figs. 1-2 – a below) and a heel region (see annotated Figs. 1-2 – a below);
a chassis plate 36 having a top surface (see annotated Figs. 1-2 – a below), a bottom surface (see annotated Figs. 1-2 – a below), and a periphery (see annotated Figs. 1-2 – a below) extending from the top surface;
an outsole plate 22 extending between the forefoot region and the heel region (as in annotated Figs. 1-2 – a below), the outsole plate including a receptacle (see annotated Figs. 1-2 – a below) formed in a top surface of the outsole plate (see annotated Figs. 1-2 – a below) and extending through the outsole plate such that a bottom surface of the receptacle (see annotated Figs. 1-2 – a below) forms a portion of a ground-contacting surface of the outsole plate (as in annotated Figs. 1-2 – a below), the receptacle extending between the forefoot region and a mid-foot region (see annotated Figs. 1-2 – a below), wherein the outsole plate is disposed below the chassis plate (as in annotated Figs. 1-2 – a below); and
a cushioning element 34, 28 (i.e. the combined 34 and 28) disposed in the receptacle (Figs. 1-2; col. 2 lines 12 and 27), wherein a top surface of the cushioning element (see annotated Figs. 1-2 – a below) rests flush with the top surface of the outsole plate when the cushioning element is disposed within the receptacle (Fig. 2; refer to annotated Figs. 1-2 – a identifying the top surfaces of outsole plate and cushioning element).
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Regarding claim 16:
Sgarlato discloses The sole structure of claim 10, as set forth above.
Sgarlato further discloses wherein the cushioning element 34, 28 (i.e. the combined 28 and 34) includes a fluid-filled bladder 28.
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) 2 and 22 is/are rejected under 35 U.S.C. 103 as being unpatentable over [McClelland, US 5,775,005] in view of [Kostis, US 2006/0230636, previously cited].
Regarding claim 2:
McClelland discloses The sole structure of claim 1, as set forth above.
McClelland does not expressly disclose wherein the cushioning element includes a fluid-filled bladder.
In further view of McClelland: McClelland teaches the cushioning element 32 is “cushioning...manufactured...to improve...comfort” (col. 2 lines 43-45) and “can be any one of a variety known in the art and are dimensioned to fit within...64...The design...will vary depending on...desired resiliency” (col. 3 lines 39-44) and is made from a “sufficiently resilient materials” (col. 3 line 64). McClellan as embodied in col. 3 lines 42-64 teaches a “preferred” embodiment thereof and a material of construction from which the cushioning element is “preferably manufactured from”; however, it is noted that MPEP 2123 states in relevant parts “A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments...Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments”.
Thus in teaching that the cushioning element can be any one of a variety known in the art and made from sufficiently resilient materials, McClelland at least teaches providing a cushioning element that is one of a variety of other cushioning elements known in the art.
Kostis teaches a cushioning element appropriate for footwear is a fluid-filled bladder (para 5; Figs. 1-6; paras 39-40).
Kostis further teaches the process by which the fluid-filled bladder is made promotes “manufacturing efficiency” and “energy efficiency” (paras 49-50).
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 sole structure of McClelland such that its cushioning element includes a fluid-filled bladder in order to render the sole structure capable of being made by an energy-efficient and/or manufacturing-efficient step of providing the cushion, as taught by Kostis (paras 49-50).
And/or
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 sole structure of McClelland such that its cushioning element includes a fluid-filled bladder in order to yield the predictable result of a cushioning element that is capable of cushioning. One of ordinary skill would have been confronted with one or more decision(s) as to how, specifically, to provide the cushioning element with cushioning properties and would have expected the fluid-filled bladder of Kostis to perform the function of cushioning based on the teachings of Kostis that a fluid-filled bladder is one such cushioning element known in the art; attention is again drawn to McClelland which states “the cushioning element “can be any one of a variety known in the art” (col. 3 line 40 of McClelland).
Regarding claim 22:
McClelland discloses The sole structure of claim 21, as set forth above.
McClelland does not expressly disclose wherein a perimeter extends between ends of the anterior segment, the posterior segment, the lateral segment, and the medial segment, wherein a portion of the perimeter of the cushioning element is concave when viewed from a radially exterior position.
In further view of McClelland: McClelland teaches the cushioning element 32 is “cushioning...manufactured...to improve...comfort” (col. 2 lines 43-45) and “can be any one of a variety known in the art and are dimensioned to fit within...64...The design...will vary depending on...desired resiliency” (col. 3 lines 39-44) and is made from a “sufficiently resilient materials” (col. 3 line 64). McClellan as embodied in col. 3 lines 42-64 teaches a “preferred” embodiment thereof and a material of construction from which the cushioning element is “preferably manufactured from”; however, it is noted that MPEP 2123 states in relevant parts “A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments...Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments”.
Thus in teaching that the cushioning element can be any one of a variety known in the art and made from sufficiently resilient materials, McClelland at least teaches providing a cushioning element that is one of a variety of other cushioning elements known in the art.
Kostis teaches a cushioning element appropriate for footwear is a fluid-filled bladder (para 5; Figs. 1-6; paras 39-40) comprising a perimeter that extends between ends of an anterior segment, a posterior segment, a lateral segment, and a medial segment, wherein a portion of the perimeter of the cushioning element is concave when viewed from a radially exterior position (see annotated Fig. 5 – a below).
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Kostis further teaches the process by which the fluid-filled bladder is made promotes “manufacturing efficiency” and “energy efficiency” (paras 49-50).
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 sole structure of McClelland such that its cushioning element includes a fluid-filled bladder wherein a perimeter extends between ends of the anterior segment, the posterior segment, the lateral segment, and the medial segment, wherein a portion of the perimeter of the cushioning element is concave when viewed from a radially exterior position in order to render the sole structure capable of being made by an energy-efficient and/or manufacturing-efficient step of providing the cushion, as taught by Kostis (paras 49-50).
And/or
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 sole structure of McClelland such that its cushioning element includes its cushioning element includes a fluid-filled bladder wherein a perimeter extends between ends of the anterior segment, the posterior segment, the lateral segment, and the medial segment, wherein a portion of the perimeter of the cushioning element is concave when viewed from a radially exterior position in order to yield the predictable result of a cushioning element that is capable of cushioning. One of ordinary skill would have been confronted with one or more decision(s) as to how, specifically, to provide the cushioning element with cushioning properties and would have expected the fluid-filled bladder of Kostis to perform the function of cushioning based on the teachings of Kostis that a fluid-filled bladder is one such cushioning element known in the art; attention is again drawn to McClelland which states “the cushioning element “can be any one of a variety known in the art” (col. 3 line 40 of McClelland).
Claim(s) 7 and 24 is/are rejected under 35 U.S.C. 103 as being unpatentable over [McClelland, US 5,775,005].
Regarding claim 7:
McClelland discloses The sole structure of claim 1, as set forth above.
McClelland further discloses wherein the outsole plate has a longitudinal length, and a midpoint along the longitudinal length, wherein the outsole plate includes an anterior area that is anterior to the midpoint (Figs. 1-4).
McClelland does not expressly disclose wherein an area of the cushioning element is less than about 70% of the anterior area.
However and in further view of McClelland:
McClelland Figs. 3-4 appears to show an area of cushioning element 32 as being less than about 70% of the anterior area (Figs. 3-4).
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 sole structure of McClelland such that an area of the cushioning element is less than about 70% of the anterior area, as appears to be the case in Figs. 3-4, in order to afford cushioning to an area of the wearer’s foot that is less than about 70% the area of the area of his entire foot in front of a midpoint of his foot for a wearer who prefers such an extent of cushioning.
Regarding claim 24:
McClelland discloses The sole structure of claim 21, as set forth above.
McClelland does not expressly disclose wherein the lateral segment has an area that is identical to an area of the medial segment.
However and in further view of McClelland:
McClelland Figs. 3-4 appears to show the lateral segment has an area that is identical to an area of the medial segment (Figs. 3-4).
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 sole structure of McClelland such that the lateral segment has an area that is identical to an area of the medial segment, as appears to be the case in Figs. 3-4, in order to yield the predictable result of affording cushioning over a first extent of a lateral portion of a foot of a wearer and to afford cushioning over a second, identical, extent of a medial portion of the foot of the wearer for a wearer who prefers such identical cushioning about medial and lateral portions of his foot.
Claim(s) 25-28 is/are rejected under 35 U.S.C. 103 as being unpatentable over [McClelland, US 5,775,005] in view of [Bowerman, US 4,107,858, previously cited; refer to the PTO-892 mailed 05/29/2025].
Regarding claim 25:
McClelland discloses The sole structure of claim 4, as set forth above.
McClelland does not expressly disclose wherein the plurality of traction elements includes a set of major cleats and a set of minor cleats.
However, Bowerman teaches (Figs. 5-6) an outsole plate 12’ wherein a bottom surface thereof is provided with a plurality of traction elements 18’, 18’’, 20’, 22’, 60 disposed on the bottom surface of the outsole plate (Figs. 5-6).
In Bowerman (Figs. 5 and 6), the plurality of traction elements includes a set of major cleats 60 and a set of minor cleats 18’; wherein cleats of the set of major cleats 60 are a generally crescent shape (Fig. 5); wherein cleats of the set of minor cleats 18’ are a generally triangular shape (Figs. 5-6); wherein the major cleats are disposed between (Figs. 5-66, wherein it is noted that “If something is between two things, it has one of the things on one side of it and the other thing on the other side of it.” between. (n.d.) Collins COBUILD English Usage. (1992, 2004, 2011, 2012). Retrieved May 22 2025 from https://www.thefreedictionary.com/between)) opposing minor cleats 18’, 18’.
Bowerman further teaches the “triangles” are “for increased traction” (col. 3 lines 30-31) and the cleats 60 “provide additional traction and are self-cleaning” (col. 5 line 19).
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 sole structure of McClelland such that its plurality of traction elements includes a set of major cleats and a set of minor cleats wherein cleats of the set of major cleats are a generally crescent shape; wherein cleats of the set of minor cleats are a generally triangular shape; wherein the major cleats are disposed between opposing minor cleats in order to increase traction and afford self-cleaning properties to the sole structure, as taught by Bowerman (col. 3 lines 30-31; col. 5 line 19).
Regarding claim 26:
McClellan in view of Bowerman teach The sole structure of claim 25, as set forth above.
The modified McClellan further meets the limitation wherein cleats of the set of major cleats are a generally crescent shape.
(Refer to above treatment of claim 25 wherein the limitation is addressed.)
Regarding claim 27:
McClellan in view of Bowerman teach The sole structure of claim 25, as set forth above.
The modified McClellan further meets the limitation wherein cleats of the set of minor cleats are a generally triangular shape.
(Refer to above treatment of claim 25 wherein the limitation is addressed.)
Regarding claim 28:
McClellan in view of Bowerman teach The sole structure of claim 25, as set forth above.
The modified McClellan further meets the limitation wherein the major cleats are disposed between opposing minor cleats.
(Refer to above treatment of claim 25 wherein the limitation is addressed.)
Claim(s) 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over [Sgarlato, US 4,100,686] in view of [Minges, US 6,544,626, newly cited].
Regarding claim 15:
Sgarlato discloses The sole structure of claim 10, as set forth above.
Sgarlato does not expressly disclose wherein a bottom surface of the outsole plate includes one or more traction elements.
Minges teaches (Figs. 1-4) a bottom surface 12 of an outsole plate 10 includes one or more traction elements 18, 20, 22, 24, 26, 28, 30.
Minges further teaches the one or more traction elements is configured to “provide[] increased traction” (Abstract) and “to provide a gripping and traction pattern for a sole of an article of footwear” (col. 2 lines 59-60) when “walking or running” (col. 4 lines 23-24).
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 sole structure of Sgarlato such that a bottom surface of the outsole plate includes one or more traction elements in order to improve the grip and/or traction of the outsole plate when walking and/or running, as suggested by Minges (Abstract; col. 2 lines 59-60; col. 4 lines 23-24).
Claim(s) 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over [Sgarlato, US 4,100,686].
Regarding claim 17:
Sgarlato discloses The sole structure of claim 10, as set forth above.
Sgarlato does not expressly disclose An article of footwear comprising the sole structure of claim 10.
However and in further view of Sgarlato:
Sgarlato teaches the sole structure is appropriate for combining with one or more other footwear element(s) to yield an article of footwear (“can be secured to conventional shoe upper[]...or form the base of a...sandal”; col. 2 lines 2-5).
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 sole structure of Sgarlato such that it is secured to a shoe upper to yield an article of footwear in order to yield the predictable result of an article of footwear that is configured to cover and/or protect both an underfoot portion of a wearer’s foot via the sole structure thereof and also portions of the wearer’s foot above his underfoot portion via the upper thereof. In adopting the modification, one would arrive at An article of footwear comprising the sole structure of claim 10 as claimed.
Conclusion
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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/GRADY ALEXANDER NUNNERY/Examiner, Art Unit 3732
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