DETAILED ACTION
This is in response to a request for continued examination (RCE) filed on 2/5/26 in which claims 1-6, 9-11,14-18, 21-24 are presented for examination, with claim 15 remaining withdrawn.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 2/5/26 has been entered.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
Claim(s) 1-6, 9-11, 14, 16-18, 21-24 is/are rejected under 35 U.S.C. 112(a) as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor at the time the application was filed, had possession of the claimed invention. Specifically:
Claim 1 Lines 8-11 “wherein the first knitted layer and the second knitted layer comprise a freely separable area; a void between the freely separable area of the first knitted layer and the second knitted layer” is considered new matter pending clarification. See 112(b) rejections below—pending clarification of whether there is a single area or an area per layer, the recitation is considered new matter, as [0014] seems to indicate there is a single area between layers for each loft portion.
Claim 1 Lines 8-11 “wherein the first knitted layer and the second knitted layer comprise a freely separable area; a void between the freely separable area of the first knitted layer and the second knitted layer” is further considered new matter. Regardless of whether there is a single area between layers or an area per area, it is considered new matter to recite that there is a void between the freely separable area(s); based on [0014], the existence of the void indicates a freely separable area; as such, it is unclear how a void is further between area(s).
Claim 16 is rejected for reasons similarly indicated for Claim 1.
Claim 21 Line 2 “knitted component comprises one or more of wedges or gores” is considered new matter. [0034] only indicates that the differing knitting directions could be through “the use of wedges or gores”, and does not disclose a combination indicated by the “or more.” Examiner recommends “knitted component comprises wedges or gores.”
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, 21-24 is/are rejected under U.S.C. 112(b).
The term “wherein the first knitted layer and the second knitted layer comprise a freely separable area; a void between the freely separable area of the first knitted layer and the second knitted layer” in Claim 1 Lines 8-11 is unclear and therefore renders the claim indefinite. It is unclear whether there is a single freely separable area or if each layer has a freely separable area. Based on [0014], it seems as though the existence of the void between the first/second layers indicates a single freely separable area. For the purposes of applying art and providing rejections, the term will be interpreted as such.
The term “wherein the first knitted layer and the second knitted layer comprise a freely separable area; a void between the freely separable area of the first knitted layer and the second knitted layer” in Claim 1 Lines 8-11 is further unclear and therefore renders the claim indefinite. Based on [0014], it seems as though the existence of the void between the first/second layers indicates a single freely separable area. As such, it is unclear how a void is furthermore between a single freely separable area. Even if the freely separable area were interpreted to be two areas (one for each layer), it is still unclear how a void is between the area(s), based on [0014]. For the purposes of applying art and providing rejections, the term will be considered met inasmuch as a void exists between the first/second layers.
The term “the loft portion” in Claim 1 Line 16 is unclear and therefore renders the claim indefinite. It is unclear which one of “each loft portion” from Claim 1 Line 4 the term is referring to. For the purposes of applying art and providing rejections, the term will be considered “the respective loft portion.”
Claim 16 Lines 7-10 is rejected for reasons similarly indicated for Claim 1 Lines 8-11.
The term “The article of footwear of claim 1, wherein the float extends across at least three needles” in Claim 23 is unclear and therefore renders the claim indefinite. The preamble is directed to a product of an article of footwear; as such, it is indefinite to now positively claim three needles that are part of a method of making or are positively claiming the system/apparatus for making the product. For the purposes of applying art and providing rejections, the term will be considered met inasmuch as the float has an extent.
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) 1-4, 9-11, 22, 23 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.
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");
wherein the first knitted layer and the second knitted layer comprise a freely separable area (as best understood in light of the 112(b) rejections--see Fig. 7A; inasmuch as a void exists, so do the freely separable areas of the first/second layers, inasmuch as the term has been defined, especially in light of applicant specification [0014]; furthermore, Fraser teaches the void area which meets the structural limitations in the claims and performs the functions as recited such as being capable of freely separable);
a void between the freely separable area of 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 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 and second connection points defining opposite boundaries of the loft portion (as best – 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 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]).
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 closer to portions of a sole structure compared to the first loft zone (a portion of set 64 is closer to sole than portion of set 66).
Regarding Claim 3, modified Fraser teaches all the claimed limitations as discussed above in Claim 1.
Fraser further teaches wherein the first loft zone has a higher degree of loft compared to the second loft zone (set 66 has higher loft than 64).
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.
Fraser further teaches wherein the strand comprises a monofilament (Col. 10 Lines 8-9 “second yarn 84 is a…polyester monofilament strand”).
Regarding Claim 23, modified Fraser teaches all the claimed limitations as discussed above in Claim 1.
Fraser further teaches wherein the float extends across at least three needles (as best understood in light of the 112(b) rejections—see Fig. 7B for float; furthermore, Fig. 7B clearly shows that the float is at least of three loops, and therefore of three needles).
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, 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, 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 one or more of 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 one or more of 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 one or more of 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 of Dean et al (US Publication 2019/0159550), herein Dean, and Leimer et al (USPN 10703060), herein Leimer.
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");
wherein the first knitted layer and the second knitted layer comprise a freely separable area (as best understood in light of the 112(b) rejections--see Fig. 7A; inasmuch as a void exists, so do the freely separable areas of the first/second layers, inasmuch as the term has been defined, especially in light of applicant specification [0014]; furthermore, Fraser teaches the void area which meets the structural limitations in the claims and performs the functions as recited such as being capable of freely separable);
a void between the freely separable area of 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 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 and second connection points defining opposite boundaries of the loft portion (as best – 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 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]).
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");
wherein the first knitted layer and the second knitted layer comprise a freely separable area (as best understood in light of the 112(b) rejections--see Fig. 7A; inasmuch as a void exists, so do the freely separable areas of the first/second layers, inasmuch as the term has been defined, especially in light of applicant specification [0014]; furthermore, Fraser teaches the void area which meets the structural limitations in the claims and performs the functions as recited such as being capable of freely separable);
a void between the freely separable area of 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 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 and second connection points defining opposite boundaries of the loft portion (as best – 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 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]).
THIRD REJECTION: Claim(s) 16-18 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) and Leimer et al (USPN 10703060), herein Leimer.
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 portion (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"), and
wherein the first knitted layer and the second knitted layer comprise a freely separable area (as best understood in light of the 112(b) rejections--see Fig. 7A; inasmuch as a void exists, so do the freely separable areas of the first/second layers, inasmuch as the term has been defined, especially in light of applicant specification [0014]; furthermore, Fraser teaches the void area which meets the structural limitations in the claims and performs the functions as recited such as being capable of freely separable);
a void located between the freely separable area of 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 between the first knitted layer and the second knitted layer that bound the corresponding loft portion (see Fig. 7A for pair of connection points at 80 bounding the corresponding 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]).
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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Response to Arguments
Applicant’s arguments with respect to claims 1-6, 9-11, 14-18, 21-24 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
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/GRACE HUANG/Primary Examiner, Art Unit 3732