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 .
Status of the Claims
As directed by the amendment received on August 26, 2025, claims 1 and 15 have been amended. Claims 5 and 12-13 were previously canceled. Accordingly, claims 1-4, 6-11, and 14-23 are currently pending in this application with claims 9-10 and 18-19 being previously withdrawn from further consideration.
Response to Amendment
The amendments filed with the written response received on August 26, 2025, have been considered and an action on the merits follows. Any objections and rejections previously put forth in the Office Action dated July 8, 2025, are hereby withdrawn unless specifically noted below.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-4, 11, 15-17, and 20-23 are rejected under 35 U.S.C. 103 as being unpatentable over USPN 6,782,639 to Muller (hereinafter, “Muller”), in view of US 2018/0255868 to Cole (hereinafter, “Cole”), and in view of US 2009/0293308 to Bruce et al. (hereinafter, “Bruce”).
Regarding claim 1, Muller teaches an article of footwear (See Muller, Fig. 1; footwear (1); abstract) comprising: an upper (See Muller, Fig. 1; upper (2)); a sole including a midsole attached to said upper and an outsole, said midsole having a front end and a rear end (See Muller, Fig. 1; sole (3) includes midsole (10) and outsole (12, 13) attached to midsole; midsole (10) includes front and rear ends).
That said, Muller is silent to a support member positioned on a bottom surface of the midsole and on a top surface of said outsole, said support member extending from said rear end to said front end of said midsole, said support member having a bottom surface that is continuously curved from a rear end to a front end of said support member.
However, Cole, in a related footwear art, is directed to an item of footwear having a sole and a fiber-reinforced sole extending along the length of the sole (See Cole, Fig. 1; abstract). More specifically, Cole teaches a support member positioned on a bottom surface of the midsole and on a top surface of said outsole, said support member extending from said rear end to said front end of said midsole (See Cole, Figs. 1-3; shank (110) positioned on bottom of midsole (105b) and extending from rear to front end of midsole; shank (110) extends along an entire length and width of the sole and has the same shape and size as the bottom surface of the midsole (105b) and the upper surface of the outsole (105a) between which it is positioned; [0050]).
It would have been obvious for one of ordinary skill in the art at the time of the effective filing date of the invention to include a shank between the midsole and outsole layers of Muller, the shank having the same size and shape as the lower surface of the midsole and the upper surface of the outsole of Muller, as disclosed by Cole, in order to provide rigidity to the sole while retaining flexibility and to prevent cracking of the sole (See Cole, [0050]).
As a result of the modification, the modified article footwear of Muller (i.e., Muller in view of Cole, as discussed above) would further teach said support member having a bottom surface that is continuously curved from a rear end to a front end of said support member (See annotated Fig. 1 of Muller below; the shank of Cole as applied between and conforming to the adjacent lower surface of midsole (10) and upper surface of outsole (12, 13) of Muller would be continuously curved from rear end to front end similar to the shape of the lower surface of midsole and upper surface of outsole of Muller).
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Annotated Fig. 1 of Muller
That said, the modified article of footwear of Muller (i.e., Muller in view of Cole, as discussed above) is silent to wherein an outer surface of said midsole extends continuously outwardly from a top edge of said midsole to a bottom edge of said midsole and about a periphery of said midsole.
However, Bruce, in a related footwear art, is directed to an article of footwear having cross sectional shapes on an outer peripheral edge of a sole for increasing lateral performance (See Bruce, Figs. 1-7; abstract). More specifically, Bruce teaches wherein an outer surface of said midsole extends continuously outwardly from a top edge of said midsole to a bottom edge of said midsole and about a periphery of said midsole (See Bruce, Figs. 1-3 and 5; sole (120) can be a midsole; midsole (120) includes concave outer surface (346) in heel region which extends continuously outwardly from a top edge to bottom edge (347); outer surface (346) extends between upper (133) and lower (132) surface of midsole (120); [0039], [0059]; Examiner notes that the preposition term "about" is very broad and merely means "in the vicinity of; near". (Prep. defn. No. 2 of "American Heritage® Dictionary of the English Language, Fifth Edition" entry via TheFreeDictionary.com)).
It would have been obvious for one of ordinary skill in the art at the time of the effective filing date of the invention to include the concave peripheral heel surface disclosed by Bruce to the peripheral heel surface of the midsole of the modified article of footwear of Muller (i.e., Muller in view of Cole, as discussed above) in order to enhance lateral stability and/or lateral agility of the sole and the wearer (See Bruce, [0061]-[0062]).
Regarding claim 2, the modified article of footwear of Muller (i.e., Muller in view of Cole and Bruce, as discussed with respect to claim 1 above) further teaches wherein said support member has a shape and size that is the same as a shape and size of an upper surface of said outsole (See annotated Fig. 1 of Muller above; shank of Cole, i.e., the support member, extends along an entire length and width of the sole and would have the same shape and size as the upper surface of the outsole of Muller in the modified article of footwear; See Cole, [0050]).
Regarding claim 3, the modified article of footwear of Muller (i.e., Muller in view of Cole and Bruce, as discussed with respect to claims 1-2 above) further teaches wherein said support member has a shape and size that is the same as a shape and size of a bottom surface of said midsole (See annotated Fig. 1 of Muller above; shank of Cole, i.e., the support member, extends along an entire length and width of the sole and therefore has the same shape and size as the bottom surface of the midsole of Muller in the modified article of footwear; See Cole, [0050]).
Regarding claim 4, the modified article of footwear of Muller (i.e., Muller in view of Cole and Bruce, as discussed with respect to claim 1 above) further teaches wherein said support member is a support plate positioned between said midsole and said outsole (See annotated Fig. 1 of Muller above; shank of Cole, i.e., the support member, is a plate positioned between the midsole (10) and outsole (12, 13) of Muller in the modified article of footwear).
Regarding claim 11, the modified article of footwear of Muller (i.e., Muller in view of Cole and Bruce, as discussed with respect to claim 1 above) further teaches wherein said sole has a rear end and a front end, and a height of said front end is less than a height of said rear end (See Muller, Fig. 1; height of front end of sole (3) is less than height of rear end of sole).
Regarding claim 15, Muller teaches an article of footwear (See Muller, Fig. 1; footwear (1); abstract) comprising: an upper (See Muller, Fig. 1; upper (2)); a sole including a midsole attached to said upper and an outsole, said midsole and outsole each including a front end and a rear end (See Muller, Fig. 1; sole (3) includes midsole (10) and outsole (12, 13) attached to midsole; midsole (10) includes front and rear ends).
That said, Muller is silent to a support plate positioned between the midsole and the outsole, said support plate extending from said rear end to said front end of said midsole and said outsole, said support plate including a bottom surface, wherein said bottom surface of said support plate and said outsole are each continuously curved from a rear end to a front end of said support plate.
However, Cole, in a related footwear art, is directed to an item of footwear having a sole and a fiber-reinforced sole extending along the length of the sole (See Cole, Fig. 1; abstract). More specifically, Cole teaches a support plate positioned between the midsole and the outsole, said support plate extending from said rear end to said front end of said midsole and said outsole, said support plate including a bottom surface (See Cole, Figs. 1-3; shank (110) positioned on bottom of midsole (105b) and extending from rear to front end of midsole; shank (110) includes a bottom surface and extends along an entire length and width of the sole and has the same shape and size as the bottom surface of the midsole (105b) and the upper surface of the outsole (105a) between which it is positioned; [0050]).
It would have been obvious for one of ordinary skill in the art at the time of the effective filing date of the invention to include a shank between the midsole and outsole layers of Muller, the shank having the same size and shape as the lower surface of the midsole and the upper surface of the outsole of Muller, as disclosed by Cole, in order to provide rigidity to the sole while retaining flexibility and to prevent cracking of the sole (See Cole, [0050]).
As a result of the modification, the modified article footwear of Muller (i.e., Muller in view of Cole, as discussed above) would further teach wherein said bottom surface of said support plate and said outsole are each continuously curved from a rear end to a front end of said support plate (See annotated Fig. 1 of Muller above; the shank of Cole as applied between and conforming to the adjacent lower surface of midsole (10) and upper surface of outsole (12, 13) of Muller would be continuously curved from rear end to front end similar to the shape of the lower surface of midsole and upper surface of outsole of Muller).
That said, the modified article of footwear of Muller (i.e., Muller in view of Cole, as discussed above) is silent to wherein an outer surface of said midsole extends outwardly from a top edge of said midsole to a bottom edge of said midsole and about a periphery of said midsole, wherein an entirety of said outer surface has a continuous curvature from said top edge to said bottom edge of said midsole.
However, Bruce, in a related footwear art, is directed to an article of footwear having cross sectional shapes on an outer peripheral edge of a sole for increasing lateral performance (See Bruce, Figs. 1-7; abstract). More specifically, Bruce teaches wherein an outer surface of said midsole extends outwardly from a top edge of said midsole to a bottom edge of said midsole and about a periphery of said midsole, wherein an entirety of said outer surface has a continuous curvature from said top edge to said bottom edge of said midsole (See Bruce, Figs. 1-3 and 5; sole (120) can be a midsole; midsole (120) includes concave outer surface (346) in heel region which extends continuously outwardly from a top edge to bottom edge (347); outer surface (346) extends between upper (133) and lower (132) surface of midsole (120); [0039], [0059]; Examiner notes that the preposition term "about" is very broad and merely means "in the vicinity of; near". (Prep. defn. No. 2 of "American Heritage® Dictionary of the English Language, Fifth Edition" entry via TheFreeDictionary.com)).
It would have been obvious for one of ordinary skill in the art at the time of the effective filing date of the invention to include the concave peripheral heel surface disclosed by Bruce to the peripheral heel surface of the midsole of the modified article of footwear of Muller (i.e., Muller in view of Cole, as discussed above) in order to enhance lateral stability and/or lateral agility of the sole and the wearer (See Bruce, [0061]-[0062]).
Regarding claim 16, the modified article of footwear of Muller (i.e., Muller in view of Cole and Bruce, as discussed with respect to claim 15 above) further teaches wherein said support plate has a shape and size that is the same as a shape and size of an upper surface of said outsole (See annotated Fig. 1 of Muller above; shank of Cole, i.e., the support member, extends along an entire length and width of the sole and would have the same shape and size as the upper surface of the outsole of Muller in the modified article of footwear; See Cole, [0050]).
Regarding claim 17, the modified article of footwear of Muller (i.e., Muller in view of Cole and Bruce, as discussed with respect to claim 15 above) further teaches wherein said support plate has a shape and size that is the same as a shape and size of a bottom surface of said midsole (See annotated Fig. 1 of Muller above; shank of Cole, i.e., the support member, extends along an entire length and width of the sole and therefore has the same shape and size as the bottom surface of the midsole of Muller in the modified article of footwear; See Cole, [0050]).
Regarding claim 20, the modified article of footwear of Muller (i.e., Muller in view of Cole and Bruce, as discussed with respect to claim 15 above) further teaches wherein said sole has a rear end and a front end, and a height of said front end is less than a height of said rear end (See Muller, Fig. 1; height of front end of sole (3) is less than height of rear end of sole).
Regarding claim 21, the modified article of footwear of Muller (i.e., Muller in view of Cole and Bruce, as discussed with respect to claim 1 above) further teaches wherein a height of a front point of said support member relative to a bottommost point of the outsole is less than a height of a rear point of said support member relative to the bottommost point of the outsole when the article of footwear is not in use (See annotated Fig. 1 of Muller above; front point of shank of Cole, i.e., the support member, in the modified article footwear has a height from a bottommost point of the outsole that is less than a height of the rear point from the bottommost point of the outsole when the modified article of footwear is not in use).
Regarding claim 22, the modified article of footwear of Muller (i.e., Muller in view of Cole and Bruce, as discussed with respect to claim 1 above) further teaches wherein a portion of the outer surface of said midsole has a concave curvature (See Bruce, Figs. 1-3 and 5; concave outer surface (346) in heel region of the midsole and as applied in the modified article of footwear of Muller as discussed above; Examiner notes that the term "portion" is very broad and merely means "a section or quantity within a larger thing; a part of a whole" (Defn. No. 1 of "American Heritage® Dictionary of the English Language, Fifth Edition" entry via TheFreeDictionary.com)).
Regarding claim 23, the modified article of footwear of Muller (i.e., Muller in view of Cole and Bruce, as discussed with respect to claim 15 above) further teaches wherein a portion of the outer surface of said midsole has a concave curvature (See Bruce, Figs. 1-3 and 5; concave outer surface (346) in heel region of the midsole and as applied in the modified article of footwear of Muller as discussed above; Examiner notes that the term "portion" is very broad and merely means "a section or quantity within a larger thing; a part of a whole" (Defn. No. 1 of "American Heritage® Dictionary of the English Language, Fifth Edition" entry via TheFreeDictionary.com)).
Claims 6-7 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Muller in view of Cole and Bruce, as applied to claim 1 above, and further in view of US 2002/0178621 to Darby (hereinafter, “Darby”).
Regarding claim 6, the modified article of footwear of Muller (i.e., Muller in view of Cole and Bruce, as discussed with respect to claim 1 above) is silent to wherein said midsole includes a first layer and a second layer.
However, Darby, in a related footwear sole structure art, is directed to a medial shoe for supporting a patient’s foot (See Darby, Fig. 4; abstract). More specifically, Darby teaches wherein said midsole includes a first layer and a second layer (See Darby, Fig. 4; midsole layers (620, 640) have different hardness values; upper layer (620) is softer than lower layer (640); [0031]-[0032]).
It would have been obvious for one of ordinary skill in the art at the time of the effective filing date of the invention to form the midsole of the modified article of footwear of Muller from multiple layers of progressively harder layers from top to bottom for a variety of reasons including for example, but not limited to, allowing the midsole to at least partially mold to the foot of wearer to provide cushioned support that reduces motion of the foot within the shoe (See Darby, [0007], [0032]).
Regarding claim 7, the modified article of footwear of Muller (i.e., Muller in view of Cole, Bruce, and Darby, as discussed with respect to claims 1 and 6 above) further teaches wherein said second layer has a hardness value that is greater than a hardness value of said first layer (See Darby, Fig. 4; midsole layers (620, 640) have different hardness values; upper layer (620) is softer than lower layer (640); [0031]-[0032]).
Regarding claim 14, the modified article of footwear of Muller (i.e., Muller in view of Cole and Bruce, as discussed with respect to claim 1 above) is silent to wherein the midsole includes different areas, and at least two of the areas have different hardness values.
However, Darby, in a related footwear sole structure art, is directed to a medial shoe for supporting a patient’s foot (See Darby, Fig. 4; abstract). More specifically, Darby teaches wherein the midsole includes different areas, and at least two of the areas have different hardness values (See Darby, Fig. 4; midsole layers (620, 640) are two areas having different hardness values; upper layer (620) is softer than lower layer (640); [0031]-[0032]).
It would have been obvious for one of ordinary skill in the art at the time of the effective filing date of the invention to form the midsole of the modified article of footwear of Muller from multiple layers of progressively harder layers from top to bottom for a variety of reasons including for example, but not limited to, allowing the midsole to at least partially mold to the foot of wearer to provide cushioned support that reduces motion of the foot within the shoe (See Darby, [0007], [0032]).
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Muller in view of Cole and Bruce, as applied to claim 1 above, and further in view of US 2007/0119076 to Brewer et al. (hereinafter, “Brewer”).
Regarding claim 8, the modified article of footwear of Muller (i.e., Muller in view of Cole and Bruce, as discussed with respect to claim 1 above) is silent to wherein said outsole includes at least one through-hole such that a portion of the support member and said midsole are exposed on a bottom surface of said sole.
However, Brewer, in a related footwear sole structure art, is directed to a sole assembly having a midsole and supportive plate with air passages for facilitating air flow to an interior of the shoe (See Brewer, Figs. 1-7B; abstract; [0011]-[0012]). More specifically, Brewer teaches wherein said outsole includes at least one through-hole such that a portion of the support member and said midsole are exposed on a bottom surface of said sole (See Brewer, Figs. 1-7B; bottom hole (19) and holes (22) extend through a bottom of outsole through a midsole (7) and plate (4) wherein both midsole and plate are exposed on a bottom surface of the sole).
It would have been obvious for one of ordinary skill in the art at the time of the effective filing date of the invention to form a bottom hole through the outsole, plate, and midsole of the modified article of footwear of Muller as disclosed by Brewer in order to form an air passage through the bottom of the outsole to facilitate air flow to an interior of the shoe and a wearer’s foot (See Cole, [0011]-[0012], [0050]-[0051]).
Response to Arguments
In view of Applicant’s amendment, the search has been updated, and new prior art has been identified and applied. Applicant’s arguments, filed August 26, 2025, with respect to the rejection of the claims under 35 USC 103 have been fully considered but are moot in view of the new grounds of rejection, as Applicant’s arguments appear to be drawn only to the newly amended limitations and previously presented rejections.
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 MATTHEW R MARCHEWKA whose telephone number is (571) 272-4038. The examiner can normally be reached M-F: 9:00AM-5:00PM EST.
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/MATTHEW R MARCHEWKA/Examiner, Art Unit 3732
/JAMESON D COLLIER/Primary Examiner, Art Unit 3732