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
The amendment filed 6/26/26 has been entered. Claims 1-6, 9-11, 14-18, 21-25 remain pending in the application, with Claim 15 remaining withdrawn. Applicant’s amendments to the (Specification, Drawings, and Claims) have overcome each and every objection and 112(b) rejections previously set forth in the Non-Final Office Action mailed 3/26/26.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
Claim(s) 1-6, 9-11, 14, 16-18, 21-25 is/are rejected under U.S.C. 112(b).
The term “the first connection point and the second connection point defining opposite boundaries of each loft portion” in Claim 1 Lines 15-16 is unclear and therefore renders the claim indefinite. It is unclear how two connection points are able to define boundaries for a plurality (“each”) of loft portions. For the purposes of applying art and providing rejections, the term will be interpreted as met by boundaries defining any single loft portion of the plurality of loft portions.
The term “a pair of connection points…that bound each loft portion” in Claim 16 Lines 14-15 is unclear and therefore renders the claim indefinite. It is unclear how two connection points are able to define boundaries for a plurality (“each”) of loft portions.
The term “a pair of connection points…that bound each loft portion” in Claim 16 Lines 14-15 is further unclear and therefore renders the claim indefinite. Claim 16 establishes plurality of first loft portions and plurality of second loft portions. It is unclear whether the term “each” refers to portions of the first, portions of the second, or both. For the purposes of applying art and providing rejections, the term will be interpreted as met by a pair of connection points bounding any singular loft portion.
Dependent claims are rejected at the least for depending on rejected claims.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
FIRST REJECTION: Claim(s) 1, 2, 4, 9-11, 22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fraser et al (USPN 11166516), herein Fraser, in view Leimer et al (USPN 10703060), herein Leimer, and Vanwelden (USPN 10662558).
Regarding Claim 1, Fraser teaches an article of footwear (see Fig. 1; Col. 2 Lines 36-37 "article of footwear 12 having an upper 12 formed at least primarily of a knitted component 14") comprising:
an upper comprising a knitted component (Col. 2 Lines 36-37; Col. 5 Lines 7-8 "cushioning region 42 is illustrated as being formed...of the knitted component 14"; Col. 5 Lines 22-23, 28 "cushioning region 42 is configured as a plurality of cushioning structures...46"; Col. 5 Lines 33, 35, 37 "knitted cushioning structures 46…extending…from the lateral side 24 to the medial side 26") comprising
a first loft zone (66) and a second loft zone (64) (see Fig. 5),
each of the first loft zone and the second loft zone having a plurality of loft portions (see Figs. 6 and 7A), each loft portion comprising:
a first knitted layer comprising a first material (see Fig. 7A, top, wherein the existence indicates a first material; see Fig. 7A; Col. 8 Lines 44-46 "as illustrated in Fig. 7A, some or all of the knitted walls 52 of the knitted cushioning structures 46 may be configured as…walls 52"; Col. 8 Lines 50-52 "walls 52 ...in which an exterior facing wall portion 76");
a second knitted layer comprising a second material (see Fig. 7A, bottom, wherein the existence indicates a second material; see Fig. 7A; Col. 8 Lines 50-53 "walls 52 …in which…an interior facing wall portion 78");
a void extending between the first knitted layer and the second knitted layer (see Fig. 7A);
a strand positioned within the void (see Figs. 7A, 7B; Col. 10 Lines 9-10 “second yarn 84 is a…polyester monofilament strand”),
wherein the strand forms a float and is integrally knitted with the knitted component (see Fig. 7B for float and integrally knit); and
a first connection point and a second connection point between the first knitted layer and the second knitted layer (see Fig. 7A for connection points at 80),
the first connection point and the second connection point defining opposite boundaries of each loft portion (as best understood in light of the 112(b) rejections--– see Fig. 7A for 80 defining opposite boundaries).
Fraser does not explicitly teach that the second material is elasticated,
the first material having a lower elasticity than the elasticated second material.
However, Fraser at least suggests the second material is elasticated ( [0038] "varying the size and tension of the knit structure 14, by using one or more yarns formed of a particular material (e.g., a polyester material, or an elastic material such as spandex)”, wherein spandex is elastic, wherein polyester could be the first material).
Nevertheless, Leimer teaches a first layer comprising a first material (see Fig. 2; Col. 7 Lines 51-56 "upper 108 can be made…of a sandwich mesh fabric including an outer layer...an inner layer...and spacer yarns...in between the outer layer and the inner layer that connects the outer and inner layers"; Col. 7 Lines 57-58 "outer layer comprises one…of polyester, polyamide"; Col. 7 Lines 60, 62 "inner layer comprises…spandex"; Col. 7 Lines 63-64 "spacer yarn comprise…nylon”; wherein the first material is the outer layer of either polyester, polyamide),
a second knitted layer comprising an elasticated second material (see above, wherein the elasticated second material is the inner layer comprising spandex),
the first material having a lower elasticity than the elasticated second material (see above, wherein polyester or polyamide both have lower elasticity than spandex, especially in light of applicant specification [0021], [0022]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Fraser’s first/second layers and spacer layer with the materials as taught by Leimer, such that the second material is of greater elasticity, in order to have the tightness of fit desired from the spacer fabric, as known in the art for wearable articles such as footwear (see extrinsic evidence Moretti Polegato et al US Publication 2018/0338563 [0085], [0001]).
Fraser also does not explicitly teach wherein the second knitted layer is knitted under tension.
However, modified Fraser already teaches the second knitted layer of elasticated material.
Vanwelden teaches an elastic second knitted layer is knitted under tension (Col. 12 Lines 38-41 "to produce a plurality of effects…an area of relief fabric may be created by knitting an elastic yarn under tension on the rear side and a non-elastic yarn which is not under tension on the front side"; see Fig. 1; Col. 2 Lines 20-22 "knitted fabric (1)...has a front side (600) and a rear side (500)", wherein rear side is the bottom/second knitted layer, while the front side is the first knitted layer).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Fraser’s second knitted layer to be knit under tension as taught by Vanwelden as a known arrangement for an elasticated second knitted layer relative to an non-elastic first knitted layer, which modified Fraser is as well, in order to produce a desired aesthetic effect (Col. 12 Lines 38-41).
As such, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention that modified Fraser teaches wherein each of the first connection point and the second connection point cause stretching of the second knitted layer, wherein the second knitted layer contracts towards an unstretched equilibrium state causing the first knitted layer to form a convex profile of each loft portion (modified Fraser has the same material as the applicant specification [0021] first knitted layer being polyester or nylon, [0026] void strand being nylon, [0022] elasticated material, all of which is taught by Leimer, the first/second connection points, and the tensioned knitting of the second knitted layer which meets the structural limitations in the claims and performs the functions as recited such as being capable of connecting points causing stretching of the second knitted layer, the contraction of the second knitted layer towards unstretched equilibrium, and causing the first knitted layer to form convex profiles for the loft portions).
Regarding Claim 2, modified Fraser teaches all the claimed limitations as discussed above in Claim 1.
Fraser further teaches wherein portions of the second loft zone are positioned adjacent to portions of a sole structure (see Figs. 1, 2, 5, wherein portions of set 64 is adjacent to sole, inasmuch as adjacent has been defined).
Regarding Claim 4, modified Fraser teaches all the claimed limitations as discussed above in Claim 1.
Fraser further teaches wherein the first loft zone comprises one or more apertures sized to receive one or more of a lace, a tensile strand, a buckle, and a strap (first loft zone can incorporate Col. 7 Line 3 “tensile strands 57”).
Regarding Claim 9, modified Fraser teaches all the claimed limitations as discussed above in Claim 1.
Fraser further teaches wherein the first loft zone is located on a vamp portion of the upper (first zone is set 66, where there's a portion of 66 on vamp such as between the medial and lateral sides of vamp; furthermore, Col. 5 Lines 7-20 "although the cushioning region 42 is illustrated as being formed in the throat 40...it is understood that the cushioning region 42 may be located in another region or regions...for example, the cushioning region 42 may be disposed primarily on the lateral side 24 and/or on the medial side 26 of the knitted component 14 to provide additional cushioning to corresponding areas of the foot...additionally...one or more cushioning regions 42 may also be located in the forefoot region 18", wherein "additional cushioning" seems like lateral/medial is in addition to throat; even if not, "additionally" indicates forefoot as vamp;),
the second loft zone is located on a medial side of the upper (second zone is set 64, where there’s portion of 64 on medial),
wherein the upper comprises a third loft zone that is located on a lateral side of the upper (Col. 8 Lines 4-13 wherein third loft zone is set 62, where there’s portion of 62 on lateral),
and wherein the first loft zone, the second loft zone, and the third loft zone each have a different amount of loft (see Fig. 5; Col. 7 Lines 44-47 "cushioning region 42 may include different areas, where each area contains a different set(s) of knitted cushioning structures 46 with different numbers of strands 56 extending through the respective channels 54 in each set"; Col. 7 Lines 51-57 "greater number of strands 56 within the channel 54 providing a channel with a relatively greater diameter. The number of strands 56 extending through the channel 54 ...may also result in a relatively greater amount of enhanced cushioning"; see Fig. 5; Col. 8 Lines 4-13 "first set 62 has...four strands 56...second set 64 has...six strands 56...third set 66 has...eight strands"; Col. 7 Lines 58, 67-Col. 8 Line 2 "cushioning region 42 includes...sets 62, 64, and 66...each contain the same number of knitted cushioning structures 46 or they may contain different number of knitted cushioning structures 46"; recitations indicate that a greater number of strands indicate a greater amount of cushioning/loft; as such, inasmuch as the three loft zones have different amount of strands, there is a different amount of loft amongst each).
Regarding Claim 10, modified Fraser teaches all the claimed limitations as discussed above in Claim 1.
Fraser further teaches wherein there are one or more recesses of loft zones that are depressed relative to an exterior surface of the first knitted layer (see Figs. 6, 6A, 7A).
Regarding Claim 11, modified Fraser teaches all the claimed limitations as discussed above in Claim 1.
Fraser further teaches wherein the knitted component is shaped in a configuration comprising one U-shaped, horseshoe shaped, C-shaped, and multiple-piece configurations (see Fig. 5 for at least U-shaped, such as at the throat).
Regarding Claim 22, modified Fraser teaches all the claimed limitations as discussed above in Claim 1.
Modified Fraser further teaches wherein the second knitted layer contracts toward the unstretched equilibrium state based on the second knitted layer being knitted under tension to form a stretched state of the second knitted layer (modified Fraser has the same material as the applicant specification [0021] first knitted layer being polyester or nylon, [0026] void strand being nylon, [0022] elasticated material, all of which is taught by Leimer, the first/second connection points, and the tensioned knitting of the second knitted layer which meets the structural limitations in the claims and performs the functions as recited such as being capable of the tension knitting contacting the second knitted layer toward unstretched equilibrium state resulting in a stretched state of the second knitted layer).
Claim(s) 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fraser et al (USPN 11166516), herein Fraser, in view Leimer et al (USPN 10703060), herein Leimer, and Vanwelden (USPN 10662558), as applied to the FIRST REJECTION above, further in view of Tsumura (JP 2003/013346).
Regarding Claim 3, modified Fraser teaches all the claimed limitations as discussed above in Claim 1.
Modified Fraser teaches wherein the strand positioned within the void causes the first knitted layer to extend away from the second knitted layer (see Fraser Figs. 7A, 7B, furthermore in light of modified Fraser with the same materials as applicant specification as outlined in the rejection of Claim 1).
Modified Fraser does not explicitly teach wherein the strand positioned within the void causes the first knitted layer to extend away from the second knitted layer by a distance of about 2-5 mm.
Tsumura teaches wherein the strand positioned within the void causes the first knitted layer to extend away from the second knitted layer by a distance of about 2-5 mm (see Fig. 2; [0043] "height difference (h) between the projecting knitted fabric portions and the recessed knitted fabric portions (11) and (13) is preferably 2 mm or more. If the thickness is less than 2 mm, it is difficult to obtain a sinking amount of about 10 mm, which is considered comfortable from an ergonomic point of view"; [0044] "three-dimensional knitted fabric (1) of the present invention preferably has a thickness of 3 to 35 mm").
Nevertheless, in the case that the prior art of Tsumura lacks sufficient specificity, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Tsumura’s range of distance/thickness from 2mm or more, or 3 to 35 mm into 2 to 35 mm and thereby meet the range 2-5 mm as claimed, as applicant appears to have placed no criticality on the claimed range (see applicant specification [0018]) and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990), especially in order to derive the desired comfort).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Fraser’s extent to be in the range as taught by Tsumura based on the desired comfort ([0043]).
Claim(s) 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fraser et al (USPN 11166516), herein Fraser, in view Leimer et al (USPN 10703060), herein Leimer, and Vanwelden (USPN 10662558), as applied to the FIRST REJECTION above, further in view of Meir (USPN 9375046).
Regarding Claim 14, modified Fraser teaches all the claimed limitations as discussed above in Claim 1.
Fraser at least suggests wherein the knitted component further comprises additional loft zones located in areas comprising one or more of a forefoot region, a midfoot region, and a rearfoot region (for forefoot region-- Col. 5 Lines 7-20 "although the cushioning region 42 is illustrated as being formed in the throat 40...it is understood that the cushioning region 42 may be located in another region or regions...for example, the cushioning region 42 may be disposed primarily on the lateral side 24 and/or on the medial side 26 of the knitted component 14 to provide additional cushioning to corresponding areas of the foot...additionally...one or more cushioning regions 42 may also be located in the forefoot region 18"; for midfoot and rearfoot regions-- see Fig. 2 wherein cushioning region 42 already extends into what can be considered midfoot and rearfoot regions, wherein lateral/medial sides extend into such regions).
Nevertheless, Meir teaches wherein the knitted component further comprises additional cushioning zones located in areas comprising one or more of a forefoot region, a midfoot region, and a rearfoot region (see Fig. 24 for cushioning in one or more of forefoot, midfoot, and rearfoot; Col. 25 Lines 1-2 "article can provide cushioning for the user due to the inclusion of one or more knitted component pieces"; Col. 25 Lines 5-8 "An embodiment of an upper 2000 for an article of footwear is illustrated in FIG. 20. Upper 2000 comprises a knitted component 2002, which can include one or more features of the knitted component of FIGS. 1-8", indicating Fig. 24 (of Fig. 20) is for cushioning).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Fraser’s cushioning zones (and therefore loft) to include additional zones in one or more of the forefoot, midfoot, and rearfoot regions as taught by Meir based on the areas desired for resilience/cushioning (Col. 28 Lines 63-66).
Claim(s) 21, 24 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fraser et al (USPN 11166516), herein Fraser, in view Leimer et al (USPN 10703060), herein Leimer, and Vanwelden (USPN 10662558), as applied to the FIRST REJECTION above, further in view of Daggett (USPN 0481299).
Regarding Claim 21, modified Fraser teaches all the claimed limitations as discussed above in Claim 1.
Fraser does not explicitly teach wherein the knitted component comprises wedges or gores that produce different knitting directions between the first loft zone and the second loft zone.
However, Fraser teaches that there can be zones of varying loft in varying locations (varying loft aforementioned-- Col. 7 Lines 51-57; varying locations—Col. 6 Lines 43-45 “knit structure formed by one or more of the yarns of the knitted component 14 may be varied at different locations”; Col. 5 Lines 12-13 “cushioning region 42 may be disposed primarily on the lateral side 24 and/or on the medial side 26 of the knitted component 14 to provide additional cushioning to corresponding areas of the foot of the wearer”),
and that the first loft zone (66) and the second loft zone (64) exist on either side of a longitudinal midline of the upper (see Fig. 5).
Daggett teaches wedges or gores (b b) formed in an upper (A) on either side of a longitudinal midline (x-x) of the upper (see Figs. 1, 3; page 1 Line 71 “quarter A”; page 1 Line 96 “counter c” for the back of foot area near heel/ankle; page 1 Line 76 "two gore-shaped pieces b b"; page 2 Line 10 "elastic goring"; for formed--see Figs. 1, 3; page 1 Line 73 "quarter is slitted at a"; page 1 Lines 59-63 "Figure 1 shows a quarter-blank slitted....Fig. 3 shows the gusset...in place after expanding the top")
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that produce different directions (wherein the directional pattern of at least a portion of the first zone on the “lateral” side is expanding towards the “medial” side, while the directional pattern of at least a portion of the second zone on the “lateral” side differs is expanding differently towards the “lateral” side).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Fraser’s upper with Daggett’s elastic gore(s) in order to gain spring, comfort, and prevent cracking (page 1 Lines 38-40) to increase longevity of the upper.
As such, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention that modified Fraser teaches wherein the knitted component comprises wedges or gores that produce different knitting directions between the first loft zone and the second loft zone (for first knitting direction-- Fraser’s loft portions of first zone with aligned knitted stitches would therefore, due to the formation of the gusset insert resulting in an expansion of the upper/quarter as taught in Daggett towards the sides, have a first directional pattern on the medial side 26 of Fraser that is towards the medial side 26; for second knitting direction-- Fraser’s loft portions of second zone with aligned knitted stitches would therefore, due to the formation of the gusset insert resulting in an expansion of the upper/quarter as taught in Daggett towards the sides, have a second directional pattern on the lateral side 24 of Fraser that is towards the lateral side 24; for different-- towards a medial side versus towards a lateral side indicates different directional patterns; wherein the first/second loft zones are portions of medial/lateral).
Regarding Claim 24, modified Fraser teaches all the claimed limitations as discussed above in Claim 1.
Fraser further teaches wherein the loft portions within the first zone are oriented along a first directional pattern (wherein the existence of knitted loft portions in a first zone indicates a first directional pattern),
wherein the loft portions within the second zone are oriented along a second directional pattern (wherein the existence of knitted loft portions in a second zone indicates a second directional pattern).
Fraser does not explicitly teach wherein the first directional pattern and the second directional pattern are different.
However, Fraser teaches that there can be zones of varying loft in varying locations (varying loft aforementioned-- Col. 7 Lines 51-57; varying locations—Col. 6 Lines 43-45 “knit structure formed by one or more of the yarns of the knitted component 14 may be varied at different locations”; Col. 5 Lines 12-13 “cushioning region 42 may be disposed primarily on the lateral side 24 and/or on the medial side 26 of the knitted component 14 to provide additional cushioning to corresponding areas of the foot of the wearer”),
and that the first loft zone (66) and the second loft zone (64) exist on either side of a longitudinal midline of the upper (see Fig. 5).
Daggett teaches elastic gores (b b) formed in an upper (A) on either side of a longitudinal midline (x-x) of the upper (see Figs. 1, 3; page 1 Line 71 “quarter A”; page 1 Line 96 “counter c” for the back of foot area near heel/ankle; page 1 Line 76 "two gore-shaped pieces b b"; page 2 Line 10 "elastic goring"; for formed--see Figs. 1, 3; page 1 Line 73 "quarter is slitted at a"; page 1 Lines 59-63 "Figure 1 shows a quarter-blank slitted....Fig. 3 shows the gusset...in place after expanding the top") that would result in:
a first zone is along a first directional pattern corresponding to a first alignment (see annotated Fig. 3 below, wherein the existence of a first zone indicates a first alignment in a first directional pattern; wherein the “medial” and “lateral” sides are annotated for ease of referring to Fig. 3)
a second zone is along a second directional pattern corresponding to a second alignment (see annotated Fig. 3 below, wherein the existence of a second zone indicates a second alignment in a second directional pattern)
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wherein the first directional pattern and the second directional pattern are different (wherein the directional pattern of at least a portion of the first zone on the “lateral” side is expanding towards the “medial” side, while the directional pattern of at least a portion of the second zone on the “lateral” side differs is expanding differently towards the “lateral” side).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Fraser’s upper with Daggett’s elastic gore(s) in order to gain spring, comfort, and prevent cracking (page 1 Lines 38-40) to increase longevity of the upper.
As such, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention that modified Fraser teaches wherein the loft portions within the first zone are oriented along a first directional pattern (Fraser’s loft portions of first zone with aligned knitted stitches would therefore, due to the formation of the gusset insert resulting in an expansion of the upper/quarter as taught in Daggett towards the sides, have a first directional pattern on the medial side 26 of Fraser that is towards the medial side 26)
wherein the loft portions within the second zone are oriented along a second directional pattern (Fraser’s loft portions of second zone with aligned knitted stitches would therefore, due to the formation of the gusset insert resulting in an expansion of the upper/quarter as taught in Daggett towards the sides, have a second directional pattern on the lateral side 24 of Fraser that is towards the lateral side 24)
wherein the first directional pattern and the second directional pattern are different (wherein towards a medial side versus towards a lateral side indicates different directional patterns).
SECOND REJECTION: Claim(s) 5, 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fraser et al (USPN 11166516), herein Fraser, in view Dean et al (US Publication 2019/0159550), herein Dean, Leimer et al (USPN 10703060), herein Leimer, and Vanwelden (USPN 10662558).
Regarding Claim 5 (otherwise known as Claims 1, 4, 5), Fraser teaches an article of footwear (see Fig. 1; Col. 2 Lines 36-37 "article of footwear 12 having an upper 12 formed at least primarily of a knitted component 14") comprising:
an upper comprising a knitted component (Col. 2 Lines 36-37; Col. 5 Lines 7-8 "cushioning region 42 is illustrated as being formed...of the knitted component 14"; Col. 5 Lines 22-23, 28 "cushioning region 42 is configured as a plurality of cushioning structures...46"; Col. 5 Lines 33, 35, 37 "knitted cushioning structures 46…extending…from the lateral side 24 to the medial side 26") comprising
a first loft zone (66) and a second loft zone (64) (see Fig. 5),
each of the first loft zone and the second loft zone having a plurality of loft portions (see Figs. 6 and 7A), each loft portion comprising:
a first knitted layer comprising a first material (see Fig. 7A, top, wherein the existence indicates a first material; see Fig. 7A; Col. 8 Lines 44-46 "as illustrated in Fig. 7A, some or all of the knitted walls 52 of the knitted cushioning structures 46 may be configured as…walls 52"; Col. 8 Lines 50-52 "walls 52 ...in which an exterior facing wall portion 76");
a second knitted layer comprising a second material (see Fig. 7A, bottom, wherein the existence indicates a second material; see Fig. 7A; Col. 8 Lines 50-53 "walls 52 …in which…an interior facing wall portion 78");
a void extending between the first knitted layer and the second knitted layer (see Fig. 7A);
a strand positioned within the void (see Figs. 7A, 7B; Col. 10 Lines 9-10 “second yarn 84 is a…polyester monofilament strand”),
wherein the strand forms a float and is integrally knitted with the knitted component (see Fig. 7B for float and integrally knit); and
a first connection point and a second connection point between the first knitted layer and the second knitted layer (see Fig. 7A for connection points at 80),
the first connection point and the second connection point defining opposite boundaries of each loft portion (as best understood in light of the 112(b) rejections--– see Fig. 7A for 80 defining opposite boundaries),
wherein the first loft zone comprises one or more apertures sized to receive one or more of a lace, a tensile strand, a buckle, and a strap (Col. 7 Line 3 "tensile strands 57", wherein the first loft zone could be more than just 42).
Fraser does not explicitly teach wherein the one or more apertures in the first loft zone each extend through both the first knitted layer and the second knitted layer.
Dean teaches wherein the first loft zone comprises one or more apertures sized to receive one or more of a lace, a tensile strand, a buckle, and a strap (see Fig. 10A-10C where is in first zone region (throat); abstract "article of footwear"; [0070] "single wall 62…of the second portion...wall may also have eyelets that are ... integrally knitted to form holes"),
wherein the one or more apertures in the first loft zone each extend through both the first knitted layer and the second knitted layer ([0070] "eyelets may extend through both portions or a single portion of the sock-like structure").
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Fraser’s apertures to be in the first loft zone and extend as taught by Dean for ease of manufacturing.
Fraser does not explicitly teach that the second material is elasticated,
the first material having a lower elasticity than the elasticated second material.
However, Fraser at least suggests the second material is elasticated ( [0038] "varying the size and tension of the knit structure 14, by using one or more yarns formed of a particular material (e.g., a polyester material, or an elastic material such as spandex)”, wherein spandex is elastic, wherein polyester could be the first material).
Nevertheless, Leimer teaches a first layer comprising a first material (see Fig. 2; Col. 7 Lines 51-56 "upper 108 can be made…of a sandwich mesh fabric including an outer layer...an inner layer...and spacer yarns...in between the outer layer and the inner layer that connects the outer and inner layers"; Col. 7 Lines 57-58 "outer layer comprises one…of polyester, polyamide"; Col. 7 Lines 60, 62 "inner layer comprises…spandex"; Col. 7 Lines 63-64 "spacer yarn comprise…nylon”; wherein the first material is the outer layer of either polyester, polyamide),
a second knitted layer comprising an elasticated second material (see above, wherein the elasticated second material is the inner layer comprising spandex),
the first material having a lower elasticity than the elasticated second material (see above, wherein polyester or polyamide both have lower elasticity than spandex, especially in light of applicant specification [0021], [0022]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Fraser’s first/second layers and spacer layer with the materials as taught by Leimer, such that the second material is of greater elasticity, in order to have the tightness of fit desired from the spacer fabric, as known in the art for wearable articles such as footwear (see extrinsic evidence Moretti Polegato et al US Publication 2018/0338563 [0085], [0001]).
Fraser also does not explicitly teach wherein the second knitted layer is knitted under tension.
However, modified Fraser already teaches the second knitted layer of elasticated material.
Vanwelden teaches an elastic second knitted layer is knitted under tension (Col. 12 Lines 38-41 "to produce a plurality of effects…an area of relief fabric may be created by knitting an elastic yarn under tension on the rear side and a non-elastic yarn which is not under tension on the front side"; see Fig. 1; Col. 2 Lines 20-22 "knitted fabric (1)...has a front side (600) and a rear side (500)", wherein rear side is the bottom/second knitted layer, while the front side is the first knitted layer).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Fraser’s second knitted layer to be knit under tension as taught by Vanwelden as a known arrangement for an elasticated second knitted layer relative to an non-elastic first knitted layer, which modified Fraser is as well, in order to produce a desired aesthetic effect (Col. 12 Lines 38-41).
As such, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention that modified Fraser teaches wherein each of the first connection point and the second connection point cause stretching of the second knitted layer, wherein the second knitted layer contracts towards an unstretched equilibrium state causing the first knitted layer to form a convex profile of each loft portion (modified Fraser has the same material as the applicant specification [0021] first knitted layer being polyester or nylon, [0026] void strand being nylon, [0022] elasticated material, all of which is taught by Leimer, the first/second connection points, and the tensioned knitting of the second knitted layer which meets the structural limitations in the claims and performs the functions as recited such as being capable of connecting points causing stretching of the second knitted layer, the contraction of the second knitted layer towards unstretched equilibrium, and causing the first knitted layer to form convex profiles for the loft portions).
Regarding Claim 6 (otherwise known as Claims 1, 4, 6), Fraser teaches an article of footwear (see Fig. 1; Col. 2 Lines 36-37 "article of footwear 12 having an upper 12 formed at least primarily of a knitted component 14") comprising:
an upper comprising a knitted component (Col. 2 Lines 36-37; Col. 5 Lines 7-8 "cushioning region 42 is illustrated as being formed...of the knitted component 14"; Col. 5 Lines 22-23, 28 "cushioning region 42 is configured as a plurality of cushioning structures...46"; Col. 5 Lines 33, 35, 37 "knitted cushioning structures 46…extending…from the lateral side 24 to the medial side 26") comprising
a first loft zone (66) and a second loft zone (64) (see Fig. 5),
each of the first loft zone and the second loft zone having a plurality of loft portions (see Figs. 6 and 7A), each loft portion comprising:
a first knitted layer comprising a first material (see Fig. 7A, top, wherein the existence indicates a first material; see Fig. 7A; Col. 8 Lines 44-46 "as illustrated in Fig. 7A, some or all of the knitted walls 52 of the knitted cushioning structures 46 may be configured as…walls 52"; Col. 8 Lines 50-52 "walls 52 ...in which an exterior facing wall portion 76");
a second knitted layer comprising a second material (see Fig. 7A, bottom, wherein the existence indicates a second material; see Fig. 7A; Col. 8 Lines 50-53 "walls 52 …in which…an interior facing wall portion 78");
a void extending between the first knitted layer and the second knitted layer (see Fig. 7A);
a strand positioned within the void (see Figs. 7A, 7B; Col. 10 Lines 9-10 “second yarn 84 is a…polyester monofilament strand”),
wherein the strand forms a float and is integrally knitted with the knitted component (see Fig. 7B for float and integrally knit); and
a first connection point and a second connection point between the first knitted layer and the second knitted layer (see Fig. 7A for connection points at 80),
the first connection point and the second connection point defining opposite boundaries of each loft portion (as best understood in light of the 112(b) rejections--– see Fig. 7A for 80 defining opposite boundaries),
wherein the first loft zone comprises one or more apertures sized to receive one or more of a lace, a tensile strand, a buckle, and a strap (Col. 7 Line 3 "tensile strands 57", wherein the first loft zone could be more than just 42).
Fraser does not explicitly teach wherein the one or more apertures in the first loft zone extend through at least one of the first knitted layer and the second knitted layer.
Dean teaches wherein the first loft zone comprises one or more apertures sized to receive one or more of a lace, a tensile strand, a buckle, and a strap (see Fig. 10A-10C where is in first zone region (throat); abstract "article of footwear"; [0070] "single wall 62…of the second portion...wall may also have eyelets that are ... integrally knitted to form holes"),
wherein the one or more apertures in the first loft zone extend through at least one of the first knitted layer and the second knitted layer ([0070] "eyelets may extend through both portions or a single portion of the sock-like structure").
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Fraser’s apertures to be in the first loft zone and extend as taught by Dean for ease of manufacturing.
Fraser does not explicitly teach that the second material is elasticated,
the first material having a lower elasticity than the elasticated second material.
However, Fraser at least suggests the second material is elasticated ( [0038] "varying the size and tension of the knit structure 14, by using one or more yarns formed of a particular material (e.g., a polyester material, or an elastic material such as spandex)”, wherein spandex is elastic, wherein polyester could be the first material).
Nevertheless, Leimer teaches a first layer comprising a first material (see Fig. 2; Col. 7 Lines 51-56 "upper 108 can be made…of a sandwich mesh fabric including an outer layer...an inner layer...and spacer yarns...in between the outer layer and the inner layer that connects the outer and inner layers"; Col. 7 Lines 57-58 "outer layer comprises one…of polyester, polyamide"; Col. 7 Lines 60, 62 "inner layer comprises…spandex"; Col. 7 Lines 63-64 "spacer yarn comprise…nylon”; wherein the first material is the outer layer of either polyester, polyamide),
a second knitted layer comprising an elasticated second material (see above, wherein the elasticated second material is the inner layer comprising spandex),
the first material having a lower elasticity than the elasticated second material (see above, wherein polyester or polyamide both have lower elasticity than spandex, especially in light of applicant specification [0021], [0022]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Fraser’s first/second layers and spacer layer with the materials as taught by Leimer, such that the second material is of greater elasticity, in order to have the tightness of fit desired from the spacer fabric, as known in the art for wearable articles such as footwear (see extrinsic evidence Moretti Polegato et al US Publication 2018/0338563 [0085], [0001]).
Fraser also does not explicitly teach wherein the second knitted layer is knitted under tension.
However, modified Fraser already teaches the second knitted layer of elasticated material.
Vanwelden teaches an elastic second knitted layer is knitted under tension (Col. 12 Lines 38-41 "to produce a plurality of effects…an area of relief fabric may be created by knitting an elastic yarn under tension on the rear side and a non-elastic yarn which is not under tension on the front side"; see Fig. 1; Col. 2 Lines 20-22 "knitted fabric (1)...has a front side (600) and a rear side (500)", wherein rear side is the bottom/second knitted layer, while the front side is the first knitted layer).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Fraser’s second knitted layer to be knit under tension as taught by Vanwelden as a known arrangement for an elasticated second knitted layer relative to an non-elastic first knitted layer, which modified Fraser is as well, in order to produce a desired aesthetic effect (Col. 12 Lines 38-41).
As such, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention that modified Fraser teaches wherein each of the first connection point and the second connection point cause stretching of the second knitted layer, wherein the second knitted layer contracts towards an unstretched equilibrium state causing the first knitted layer to form a convex profile of each loft portion (modified Fraser has the same material as the applicant specification [0021] first knitted layer being polyester or nylon, [0026] void strand being nylon, [0022] elasticated material, all of which is taught by Leimer, the first/second connection points, and the tensioned knitting of the second knitted layer which meets the structural limitations in the claims and performs the functions as recited such as being capable of connecting points causing stretching of the second knitted layer, the contraction of the second knitted layer towards unstretched equilibrium, and causing the first knitted layer to form convex profiles for the loft portions).
THIRD REJECTION: Claim(s) 16-18, 23 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fraser et al (USPN 11166516), herein Fraser, in view of Daggett (USPN 0481299), Leimer et al (USPN 10703060), herein Leimer, and Vanwelden (USPN 10662558).
Regarding Claim 16, Fraser teaches an article of footwear (see Fig. 1; Col. 2 Lines 36-37 "article of footwear 12 having an upper 12 formed at least primarily of a knitted component 14"), comprising:
an upper comprising a knitted component (Col. 2 Lines 36-37; Col. 5 Lines 7-8 "cushioning region 42 is illustrated as being formed...of the knitted component 14"; Col. 5 Lines 22-23, 28 "cushioning region 42 is configured as a plurality of cushioning structures...46"; Col. 5 Lines 33, 35, 37 "knitted cushioning structures 46…extending…from the lateral side 24 to the medial side 26") comprising
a first loft zone (66) having a plurality of first loft portions (see Fig. 5; clearly different portions based on Fig. 7, each line of circle being a portion),
and a second loft zone (64) having a plurality of second loft portions (see Fig. 5; clearly different portions based on Fig. 7, each line of circle being a portion),
each first loft portion and each second loft portion comprising:
a first knitted layer comprising a first material (see Fig. 7A, top, wherein the existence indicates a first material; see Fig. 7A; Col. 8 Lines 44-46 "as illustrated in Fig. 7A, some or all of the knitted walls 52 of the knitted cushioning structures 46 may be configured as…walls 52"; Col. 8 Lines 50-52 "walls 52 ...in which an exterior facing wall portion 76"),
a second knitted layer comprising a second material (see Fig. 7A, bottom, wherein the existence indicates a second material; see Fig. 7A; Col. 8 Lines 50-53 "walls 52 …in which…an interior facing wall portion 78"),
a void located between the first knitted layer and the second knitted layer (as best understood in light of the 112(b) rejections--see Fig. 7A);
a strand positioned within the void (see Figs. 7A, 7B; Col. 10 Lines 9-10 “second yarn 84 is a…polyester monofilament strand”),
wherein the strand forms a float and is integrally knitted with the knitted component (see Fig. 7B for float and integrally knit); and
a pair of connection points that join the first knitted layer and the second knitted layer and that bound each corresponding loft portion (as best understood in light of the 112(b) rejections--see Fig. 7A for pair of connection points at 80 joining layers and bounding each loft portion),
wherein the loft portions within the first zone extend along a first directional pattern (wherein the existence of knitted loft portions in a first zone indicates an extent along a first directional pattern),
wherein the loft portions within the second zone extend along a second directional pattern (wherein the existence of knitted loft portions in a second zone indicates an extent along a second directional pattern),
wherein the plurality of first loft portions have a first shape defined by the first directional pattern, and the plurality of second loft portions have a second shape defined by the second directional pattern (wherein the existence of the first/second loft portions indicate first/second shapes, especially different ones in light of Fig. 5; Col. 7 Lines 44-47 "cushioning region 42 may include different areas, where each area contains a different set(s) of knitted cushioning structures 46 with different numbers of strands 56 extending through the respective channels 54 in each set”; Col. 7 Lines 51-57 "greater number of strands 56 within the channel 54 providing a channel with a relatively greater diameter. The number of strands 56 extending through the channel 54 ...may also result in a relatively greater amount of enhanced cushioning"; see Fig. 5; Col. 8 Lines 4-13 "first set 62 has...four strands 56...second set 64 has...six strands 56...third set 66 has...eight strands"; Col. 7 Lines 58, 67-Col. 8 Line 2 "cushioning region 42 includes...sets 62, 64, and 66...each contain the same number of knitted cushioning structures 46 or they may contain different number of knitted cushioning structures 46"; wherein at least Col. 8 Lines 4-13 with different number of strands in the first/second loft portions would indicate different cushioning and therefore different shape).
Fraser does not explicitly teach wherein the first directional pattern and the second directional pattern are different.
However, Fraser teaches that there can be zones of varying loft in varying locations (varying loft aforementioned-- Col. 7 Lines 51-57; varying locations—Col. 6 Lines 43-45 “knit structure formed by one or more of the yarns of the knitted component 14 may be varied at different locations”; Col. 5 Lines 12-13 “cushioning region 42 may be disposed primarily on the lateral side 24 and/or on the medial side 26 of the knitted component 14 to provide additional cushioning to corresponding areas of the foot of the wearer”),
and that the first loft zone (66) and the second loft zone (64) exist on either side of a longitudinal midline of the upper (see Fig. 5).
Daggett teaches elastic gores (b b) formed in an upper (A) on either side of a longitudinal midline (x-x) of the upper (see Figs. 1, 3; page 1 Line 71 “quarter A”; page 1 Line 96 “counter c” for the back of foot area near heel/ankle; page 1 Line 76 "two gore-shaped pieces b b"; page 2 Line 10 "elastic goring"; for formed--see Figs. 1, 3; page 1 Line 73 "quarter is slitted at a"; page 1 Lines 59-63 "Figure 1 shows a quarter-blank slitted....Fig. 3 shows the gusset...in place after expanding the top") that would result in:
a first portion is along a first directional pattern corresponding to a first alignment (see annotated Fig. 3 below, wherein the existence of a first portion/zone indicates a first alignment in a first directional pattern; wherein the “medial” and “lateral” sides are annotated for ease of referring to Fig. 3)
a second portion is along a second directional pattern corresponding to a second alignment (see annotated Fig. 3 below, wherein the existence of a second portion/zone indicates a second alignment in a second directional pattern)
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wherein the first directional pattern and the second directional pattern are different (wherein the directional pattern of at least a portion of the first zone on the “lateral” side is expanding towards the “medial” side, while the directional pattern of at least a portion of the second zone on the “lateral” side differs is expanding differently towards the “lateral” side).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Fraser’s upper with Daggett’s elastic gore(s) in order to gain spring, comfort, and prevent cracking (page 1 Lines 38-40) to increase longevity of the upper.
As such, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention that modified Fraser teaches wherein the plurality of first loft portions are oriented along a first directional pattern (Fraser’s first loft portions of first zone would therefore, due to the formation of the gusset insert resulting in an expansion of the upper/quarter as taught in Daggett towards the sides, have a first directional pattern on the medial side 26 of Fraser that is towards the medial side 26)
wherein the plurality of second loft portions are oriented along a second directional pattern (Fraser’s second loft portions of second zone would therefore, due to the formation of the gusset insert resulting in an expansion of the upper/quarter as taught in Daggett towards the sides, have a second directional pattern on the lateral side 24 of Fraser that is towards the lateral side 24)
wherein the first directional pattern and the second directional pattern are different (wherein towards a medial side versus towards a lateral side indicates different directional patterns),
wherein the plurality of first loft portions have a first shape defined by the first directional pattern, and the plurality of second loft portions have a second shape defined by the second directional pattern (portion of first directional pattern extending toward the medial side at a certain angle; portion of second directional pattern extending differently toward the lateral side at a certain angle).
Fraser does not explicitly teach that the second material is elasticated,
the first material having a lower elasticity than the elasticated second material.
However, Fraser at least suggests the second material is elasticated ( [0038] "varying the size and tension of the knit structure 14, by using one or more yarns formed of a particular material (e.g., a polyester material, or an elastic material such as spandex)”, wherein spandex is elastic, wherein polyester could be the first material).
Nevertheless, Leimer teaches a first layer comprising a first material (see Fig. 2; Col. 7 Lines 51-56 "upper 108 can be made…of a sandwich mesh fabric including an outer layer...an inner layer...and spacer yarns...in between the outer layer and the inner layer that connects the outer and inner layers"; Col. 7 Lines 57-58 "outer layer comprises one…of polyester, polyamide"; Col. 7 Lines 60, 62 "inner layer comprises…spandex"; Col. 7 Lines 63-64 "spacer yarn comprise…nylon”; wherein the first material is the outer layer of either polyester, polyamide),
a second knitted layer comprising an elasticated second material (see above, wherein the elasticated second material is the inner layer comprising spandex),
the first material having a lower elasticity than the elasticated second material (see above, wherein polyester or polyamide both have lower elasticity than spandex, especially in light of applicant specification [0021], [0022]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Fraser’s first/second layers with the materials as taught by Leimer, such that the second material is of greater elasticity, in order to have the tightness of fit desired from the spacer fabric, as known in the art for wearable articles such as footwear (see extrinsic evidence Moretti Polegato et al US Publication 2018/0338563 [0085], [0001]).
Fraser also does not explicitly teach wherein the second knitted layer is knitted under tension.
However, modified Fraser already teaches the second knitted layer of elasticated material.
Vanwelden teaches an elastic second knitted layer is knitted under tension (Col. 12 Lines 38-41 "to produce a plurality of effects…an area of relief fabric may be created by knitting an elastic yarn under tension on the rear side and a non-elastic yarn which is not under tension on the front side"; see Fig. 1; Col. 2 Lines 20-22 "knitted fabric (1)...has a front side (600) and a rear side (500)", wherein rear side is the bottom/second knitted layer, while the front side is the first knitted layer).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Fraser’s second knitted layer to be knit under tension as taught by Vanwelden as a known arrangement for an elasticated second knitted layer relative to an non-elastic first knitted layer, which modified Fraser is as well, in order to produce a desired aesthetic effect (Col. 12 Lines 38-41).
As such, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention that modified Fraser teaches wherein contraction of the second knitted layer towards an unstretched equilibrium state causes contraction of the first knitted layer at the pair of connection points causing the first knitted layer to form a convex shape at least partially defining the void (modified Fraser has the same material as the applicant specification [0021] first knitted layer being polyester or nylon, [0026] void strand being nylon, [0022] elasticated material, all of which is taught by Leimer, the first/second connection points, and the tensioned knitting of the second knitted layer which meets the structural limitations in the claims and performs the functions as recited such as being capable of the contraction of the second knitted layer towards unstretched equilibrium, and causing the first knitted layer to contract at the connecting points and causing the first knitted layer to form a convex shape at least partially defining the void).
Regarding Claim 17, modified Fraser teaches all the claimed limitations as discussed above in Claim 16.
Modified Fraser further teaches a third loft zone with a plurality of third loft portions (Col. 8 Lines 4-13 wherein third loft zone is set 62),
wherein the plurality of third loft portions have a different shape from both the plurality of first loft portions defined by the first directional pattern and the plurality of second loft portions defined by the second directional pattern (regardless whether the third loft portions are that of the medial or lateral side, they extend at a different angle than either of the first/second loft portions, and therefore would have an extent/shape different as recited, based on the shapes taught of the first/second loft portions in Claim 16 from the insertion of Daggett’s gores and based off the shape of 62 relative to first loft zone 66 and second loft zone 64 in Fraser Fig. 5).
Regarding Claim 18, modified Fraser teaches all the claimed limitations as discussed above in Claim 17.
Modified Fraser further teaches wherein the first loft zone is located on a vamp portion of the upper (see Fraser first zone is set 66, where there's a portion of 66 on vamp such as between the medial and lateral sides of vamp; furthermore, Col. 5 Lines 7-20 "although the cushioning region 42 is illustrated as being formed in the throat 40...it is understood that the cushioning region 42 may be located in another region or regions...for example, the cushioning region 42 may be disposed primarily on the lateral side 24 and/or on the medial side 26 of the knitted component 14 to provide additional cushioning to corresponding areas of the foot...additionally...one or more cushioning regions 42 may also be located in the forefoot region 18", wherein "additional cushioning" seems like lateral/medial is in addition to throat; even if not, "additionally" indicates forefoot as vamp; see annotated Daggett below for clarification, also Daggett page 1 Lines 76-78 “gore-shaped pieces b b…to afford the desired spring for the top of the shoe”, wherein top of the shoe indicates at least the vamp; wherein vamp is of upper),
the second loft zone is located on a medial side of the upper (see Fraser second zone is set 64, where there’s portion of 64 on medial; see annotated Daggett below for clarification),
and the third loft zone is located on a lateral side of the upper (see Fraser third zone is set 62, where there’s portion of 62 on lateral; see annotated Daggett below for clarification).
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Regarding Claim 23, modified Fraser teaches all the claimed limitations as discussed above in Claim 16.
Modified Fraser further teaches wherein the second knitted layer contracts toward the unstretched equilibrium state based on the second knitted layer being knitted under tension to form a stretched state of the second knitted layer (modified Fraser has the same material as the applicant specification [0021] first knitted layer being polyester or nylon, [0026] void strand being nylon, [0022] elasticated material, all of which is taught by Leimer, the first/second connection points, and the tensioned knitting of the second knitted layer which meets the structural limitations in the claims and performs the functions as recited such as being capable of the tension knitting contacting the second knitted layer toward unstretched equilibrium state resulting in a stretched state of the second knitted layer).
Claim(s) 25 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fraser et al (USPN 11166516), herein Fraser, in view of Daggett (USPN 0481299), Leimer et al (USPN 10703060), herein Leimer, and Vanwelden (USPN 10662558), as applied to the THIRD REJECTION above, further in view of Tsumura (JP 2003/013346) and Kodad (US Publication 2015/0113829).
Regarding Claim 25, modified Fraser teaches all the claimed limitations as discussed above in Claim 16.
Modified Fraser teaches wherein the strand positioned within the void causes the first knitted layer to extend away from the second knitted layer (see Fraser Figs. 7A, 7B, furthermore in light of modified Fraser with the same materials as applicant specification as outlined in the rejection of Claim 1),
wherein each loft portion has a width between the pair of connection points (see Fraser Fig. 7A).
Modified Fraser does not explicitly teach wherein the strand positioned within the void causes the first knitted layer to extend away from the second knitted layer by a distance of about 2-5 mm.
Tsumura teaches wherein the strand positioned within the void causes the first knitted layer to extend away from the second knitted layer by a distance of about 2-5 mm (see Fig. 2; [0043] "height difference (h) between the projecting knitted fabric portions and the recessed knitted fabric portions (11) and (13) is preferably 2 mm or more. If the thickness is less than 2 mm, it is difficult to obtain a sinking amount of about 10 mm, which is considered comfortable from an ergonomic point of view"; [0044] "three-dimensional knitted fabric (1) of the present invention preferably has a thickness of 3 to 35 mm").
Nevertheless, in the case that the prior art of Tsumura lacks sufficient specificity, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Tsumura’s range of distance/thickness from 2mm or more, or 3 to 35 mm into 2 to 35 mm and thereby meet the range 2-5 mm as claimed, as applicant appears to have placed no criticality on the claimed range (see applicant specification [0018]) and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990), especially in order to derive the desired comfort).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Fraser’s extent to be in the range as taught by Tsumura based on the desired comfort ([0043]).
Modified Fraser also does not explicitly teach wherein each loft portion has a width of about 4-10 mm between the pair of connection points.
However, Kodad suggests modifying the width (see Fig. 7 for tensile member 165; [0087] "variety of knitting techniques may be utilized to form tensile member 165 and impart a specific configuration (e.g….length, width, thickness) to tensile member 165", [0090] "chamber may include stitching through select portions of the tensile member in order to main the select portions of the tensile member in a collapsed configuration. This may provide the chamber with a reduced thickness, which may provide hinge-like flexibility in the stitched region").
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Fraser’s width as taught by Kodad to be 4-10mm depending on the desired hinge flexibility of the knit, whereby then it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to measure the width and get the recited range. Even if the range measured did not overlap but was merely close, a prima facie case of obviousness still exists. See MPEP 2144.05, Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
Nevertheless, in the case that the prior art of modified Fraser lacks sufficient specificity, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Fraser’s range of width to be 4-10mm, as applicant appears to have placed no criticality on the claimed range (see applicant specification [0018]) and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Fraser’s width to be as taught by Kodad based on desired hinge flexibility ([0090]).
Response to Arguments
Applicant’s arguments with respect to claims 1-6, 9-11, 14, 16-18, 21-25 have been considered but are moot because of the new grounds of rejection necessitated by amendment. Therefore, see aforementioned rejections for the argued missing limitations.
Conclusion
The prior art made of record and not relied upon but is considered pertinent to applicant's disclosure and can be used to formulate a rejection if necessary: Van Pieterson et al (USPN 9666107) directed to a spacer fabric with elastic yarn knit under tension; Mueller et al (USPN 11041263) directed to a spacer fabric with elastic yarn knit under tension on the top layer.
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 extension fee 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 date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Grace Huang whose telephone number is (571)270-5969. The examiner can normally be reached M-Th 8:30am-5:30pm EST.
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/GRACE HUANG/Primary Examiner, Art Unit 3732
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