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 .
Election/Restrictions
Applicant’s election of Sub-Species I from each of Species Groups I and II, in the reply filed on June 19, 2026, is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claims 5, 13, and 17-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species, there being no allowable generic or linking claim.
Priority
Applicant’s claims for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c) are acknowledged. Applicant has not complied with one or more conditions for receiving the benefit of an earlier filing date under 35 U.S.C. 119(e) or 35 U.S.C. 120 as follows: the later-filed application must be an application for a patent for an invention which is also disclosed in the prior application (the parent or original nonprovisional application or provisional application). The disclosure of the invention in the parent application and in the later-filed application must be sufficient to comply with the requirements of 35 U.S.C. 112(a) or the first paragraph of pre-AIA 35 U.S.C. 112, except for the best mode requirement. See Transco Products, Inc. v. Performance Contracting, Inc., 38 F.3d 551, 32 USPQ2d 1077 (Fed. Cir. 1994).
The disclosures of the prior-filed applications fail to provide adequate support or enablement in the manner provided by 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph for one or more claims of this application. Although parent application 15/980,263 and provisional application 62/506,127 appear to provide adequate support for the claimed subject matter in claims 1-4, 6-12 and 14-16, the totality of the limitations in the claimed combination does not appear to be adequately supported in the remainder of the documents from which priority is claimed.
For purposes of examination, the priority date of the currently examined application will be interpreted as the filing date of the parent application 15/980,263 and provisional application 62/506,127, thereby being May 15, 2017.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1-4, 6-12, 14, and 15 are rejected under 35 U.S.C. 103 as obvious over US Pub. No. 2014/0101816 to Toronjo in view of USPN 7,989,057 to Alderson.
Regarding claims 1-4, 6-12, 14, and 15, Toronjo teaches articles of apparel, particularly footwear, including at least one panel including an auxetic structure (Toronjo, Abstract, paragraph 0002), such as an auxetic layer sandwiched between an inner elastic layer (i.e., a base layer) and an outer elastic layer, wherein the layers can be comprised of the same or different material as the base layer (Id., paragraphs 0097, 0098). Toronjo teaches that it is possible to control the overall stretch/expansion pattern of the auxetic arrangement by combining individual properties of the auxetic layer and a non-auxetic base layer, as it is possible to provide a non-auxetic layer with auxetic properties (Id., paragraph 0090). Toronjo teaches that the term “auxetic” refers to a material or structure possessing a negative Poisson’s ratio (Id., paragraph 0065). Note that since each of the base layer and outer layer are non-auxetic, both the base layer and outer layer comprise positive Poisson values. Toronjo teaches that the auxetic structure is provided by a plurality of generally-polygon-shaped cells, oriented in an array (Id., paragraphs 0065, 0067), wherein a plurality of interconnected segments form an array of cells and each cell having a reentrant shape (Id., paragraph 0069). Toronjo teaches the auxetic layer being a plurality of segments (Id., paragraph 0076), the segments being printed directly on the base layer (Id., paragraph 0082). Toronjo teaches that the auxetic layer can be coupled via adhesives to the base layer (Id., paragraph 0088). Toronjo teaches that the void of each cell in the auxetic layer exposes the second layer through the auxetic layer (Id., paragraph 0083).
Regarding the layers being bonded as claimed, Toronjo teaches that the auxetic layer may be a sheet directly connected to a fabric base layer, such as the auxetic layer being connected to the base layer and applying heat such that the material of the auxetic layer in contact with the base layer infiltrates the base layer, or applying the auxetic layer in a molten or semi-molten state (Toronjo, paragraph 0088). Toronjo teaches an auxetic arrangement incorporated into at least one panel, the auxetic layer coupled to a second or resilient layer (i.e, a substrate or base layer) via adhesive (Id., paragraph 0075). Toronjo teaches that the base layer is formed of a two-way or four-way stretch fabric (Id., paragraphs 0084, 0085). Toronjo teaches that the base layer may be integrally formed with the auxetic layer to provide a continuous sheet of material that is seamless without constituent parts (Id., paragraph 0087). Toronjo teaches that the base layer may include sheets of different types of material to provide differing stretch characteristics (Id., paragraph 0134).
Toronjo establishes connecting the auxetic layer to the base layer by applying heat such that the auxetic layer infiltrates the base layer. Although Toronjo teaches sandwiching the auxetic layer between the inner and outer layer, Toronjo does not establish how the outer layer is connected to the auxetic layer. However, Toronjo establishes that the inner and outer layer may comprise the same or different material. Additionally, Toronjo establishes that the base layer limits the expansion of the auxetic layer to that necessary to conform the object (Toronjo, paragraph 0090). Similarly, Toronjo establishes that the outer layer provides additional resistance to expansion and contraction of the auxetic layer, and additional resiliency to the arrangement (Id., paragraph 0097). Since the inner and outer layers of Toronjo are similar fabric layers which provide similar resistance properties for the auxetic layer, it is reasonable for one of ordinary skill to expect that the outer layer may be connected to the auxetic layer in the same manner as the inner base layer is connected to the auxetic layer.
Additionally, Alderson teaches a composite material comprising a layer of fibers conjoined to a matrix, wherein one of the matrix and fibers comprises a first component which exhibits auxetic behavior for loading along a first direction, and the other of the matrix and fibers comprises a second component which exhibits non-auxetic behavior for loading along the first direction (Alderson, Abstract). Alderson teaches that the layers of fibers may be embedded in the matrix, partially embedded in the matrix, or may for a separate layer in contact with the matrix, wherein the layer of fibers may have any suitable construction, including woven, knitted or nonwovens (Id., column 3 lines 18-26). Alderson teaches that auxetic thermoplastic and/or thermosetting resins are known and would be suitable for use as the matrix material in the present invention (Id., column 6 lines 31-44, column 7 lines 9-11), wherein the matrix impregnates the layer of fibers during curing (Id., column 8 lines 10-22). Alderson suggests partially curing the auxetic material followed by final curing (Id., column 8 lines 15-67). Alderson teaches curing when sufficient layers have been applied (Id., column 9 lines 1-67). Alderson teaches that during cure of the composite material, the first and second components become linked within the composite (Id., column 4 line 66 to column 5 line 14).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the footwear of Toronjo, wherein the inner base layer is connected to the auxetic layer by heat and at least partially cured and the outer layer is connected to the auxetic layer by heat and cured, such that the auxetic layer infiltrates the inner base layer and outer layer, motivated by the desire of forming a conventional auxetic material comprising an inner and outer layer to predictably limit or resist expansion of the auxetic layer, based on the desired conformability properties and to predictably link the layers of the composite.
Regarding claim 3, Toronjo teaches that the auxetic structure is patterned and cut (Toronjo, paragraphs 0108, 0109).
Regarding claim 4, Toronjo teaches an auxetic arrangement incorporated into at least one panel, the auxetic layer coupled to a second or resilient layer (i.e, a substrate or base layer) via adhesive (Toronjo, paragraphs 0075, 0088). Toronjo teaches the auxetic layer being a plurality of segments (Id., paragraph 0076), the segments being printed directly on the base layer using any of various printing methods as will be recognized by those of ordinary skill in the art (Id., paragraph 0082). Toronjo teaches that the auxetic layer may first be printed on a transfer sheet and then a heat transfer method may be used to transfer the auxetic layer to the base layer (Id.). Although Toronjo does not appear to specifically teach screen printing the auxetic structure, one of ordinary skill in the art would recognize that printing the auxetic layer to a transfer sheet and using a heat transfer method would include screen printing the auxetic layer, as screen printing encapsulates the features set forth in Toronjo and is recognized by those of ordinary skill.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the footwear of the prior art combination, wherein the auxetic layer is screen printed to the base layer, as suggested by Toronjo, motivated by the desire of forming a conventional auxetic material comprising an inner and outer layer to predictably limit or resist expansion of the auxetic layer, based on the desired conformability properties.
Regarding claim 6, as set forth above, the prior art combination teaches or suggests printing a bonding layer on a textile wherein the bonding layer penetrates and is at least partially embedded in the textile, and applying another layer to the bonding layer wherein the bonding layer penetrates and is at least partially embedded in the other layer. The prior art combination teaches curing the bonding layer to link the layers together. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the footwear of the prior art combination, wherein the auxetic layer is bonded as claimed to a first layer and then bonded to a second layer as claimed and then curing the auxetic layer, as suggested by Toronjo and Alderson, motivated by the desire of forming a conventional auxetic material comprising a structure suggested by the prior art, wherein curing the auxetic layer after bonding and embedding the layers further links the layers of the composite together.
Regarding claims 7, 8 and 10, Toronjo teaches that the base layer is formed of a four-way stretch fabric (Toronjo, paragraphs 0084, 0085). Toronjo teaches that the base layer may include sheets of different types of material to provide differing stretch characteristics (Id., paragraph 0134). Toronjo teaches that is possible to control the overall stretch/expansion pattern of the auxetic arrangement by combining individual properties of the auxetic layer and base layer, and it is possible to provide a non-auxetic layer with auxetic properties (Id., paragraph 0090).
Claim 16 is rejected under 35 U.S.C. 103 as obvious over Toronjo in view of Alderson, as applied to claims 1-4, 6-12, 14, and 15 above, and further in view of US Pub. No. 2006/0112599 to Braynock.
Regarding claim 16, Toronjo teaches that the upper includes an integrally formed auxetic structure (Toronjo, paragraph 0008). Toronjo does not appear to teach the claimed sheer material. However, Braynock teaches a footwear system with transparent liners (Braynock, Abstract). Braynock teaches that footwear includes a sole and an upper, and an innerliner, wherein examples of innerliners include spandex, leather and elastic among others (Id., paragraph 0099). Braynock teaches that at least a portion of the upper includes at least one special display area made of transparent, semi-transparent or translucent materials, including solid, mesh, webbing, weave, gauze and sheer (Id., paragraph 0100). Braynock teaches that the special display area allows light to travel from an interior surface to an exterior surface of the footwear (Id.). Braynock teaches that the display area allows the user to rapidly, easily, and effectively alter the appearance of the footwear (Id., paragraph 0007).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the footwear of the prior art combination, and substituting an outer layer of the upper with a sheer material, as taught by Braynock, motivated by the desire of forming a conventional footwear material comprising a structural material known in the art to be predictably suitable for use in footwear, based on the desired aesthetics.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PETER Y CHOI whose telephone number is (571)272-6730. The examiner can normally be reached M-F 9:00 AM - 3:00 PM.
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/PETER Y CHOI/ Primary Examiner, Art Unit 1786
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