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 .
DETAILED ACTION
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 November 12, 2025 has been entered.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
1. Claim(s) 1-2, 9-10, and 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Darby (US 2,616,190) in view of Riddle (US 2013/0067764).
Regarding Claim 1, Darby discloses a shoe, comprising: a base member (48,56) having a top surface (i.e. top surface of 56), a bottom surface (i.e. bottom surface of 48) positioned opposite the top surface, a first end (i.e. toe end) having a first end length, a second end (i.e. heel end) having a second end length and positioned opposite the first end, a first wall (i.e. lateral wall) having a first wall length extending between the first end and the second end, a second wall (i.e. medial wall) having a second wall length extending between the first end and the second end, the second wall positioned opposite the first wall (Col.7, lines 18-26), wherein the first wall length and the second wall length are each greater than each of the first end length and the second end length (i.e. the longitudinal medial & lateral side walls would be longer than the toe end & heel end lengths), the base member having an upper portion (56) extending between the first wall and the second wall, and a lower portion (48) extending between the first wall and the second wall, the lower portion positioned opposite the upper portion and hingedly connected to the upper portion along the first wall length so as to form an angled opening (void containing 46,47) between the upper portion and the lower portion extending along the second wall length (as seen in Fig.4, 8 & 8a); an orthotic wedge (46,47) having an orthotic angle, the orthotic wedge positioned within the angled opening formed by the upper portion and the lower portion of the base member (as seen in Fig.4, 5, 5a, 8 & 8a); and at least one upper shoe member (57) connected to the top surface of the base member of the shoe (as seen in Fig.4, 8 & 8a). Darby does not disclose the orthotic wedge extending within the angled opening from the first end of the base member to the second end of the base member and along the first wall length of the first wall. However, Riddle teaches a shoe having a sole (10/84) with an orthotic wedge (16) extending within an angled opening from a first end (i.e. toe end) of the base member to a second end (i.e. heel end) of the base member and along a first wall length of a first wall (as seen in Fig.1A, 1C & 5C; para.57).
Therefore, it would have been obvious to one having ordinary skill in the art to have modified the orthotic wedges of Darby to be a continuous wedge extending from the first end of the base member to the second end of the base member, as taught by Riddle, in order to provide a contoured surface that redistributes the load at the knee or ankle joint of a person wearing the shoe, making for a more supportive and comfortable shoe.
Regarding Claim 2, Darby discloses a shoe of claim 1, wherein the upper portion and the lower portion are hingedly connected with a hinge (i.e. point where 48 & 56 are fixedly attached together), wherein the hinge comprises a portion of the upper portion and a portion of the lower portion of the base member (as seen in Fig.8 & 8a).
Regarding Claim 9, Darby discloses a shoe of claim 1, wherein the orthotic wedge (46,47) has a top surface (i.e. surface facing 56), a bottom surface (i.e. surface facing 48) positioned opposite the top surface of the orthotic wedge, a front wall (i.e. toe end facing wall), a back wall (i.e. heel end facing wall) positioned opposite the front wall, a first sidewall (50) having a first height, a second sidewall (49) having a second height positioned opposite the first sidewall, wherein the first height of the first sidewall is greater than the second height of the second sidewall thereby defining an orthotic angle of the orthotic wedge (as seen in Fig.4, 5, 5a, 8, and 8a).
Regarding Claim 10, Darby discloses a shoe of claim 1, wherein the upper portion (56) and the lower portion (48) of the base member are positioned at an angle greater than or equal to the orthotic angle (of 46,47) of the orthotic wedge (as seen in Fig.4, 5, 5a, 8, and 8a).
Regarding Claim 21, Darby discloses a shoe, comprising: a base member (48,56) having a first end (i.e. toe end) having a first end length, a second end (i.e. heel end) having a second end length and positioned opposite the first end, a first wall (i.e. lateral wall) having a first wall length extending between the first end and the second end, a second wall (i.e. medial wall) having a second wall length extending between the first end and the second end, the second wall positioned opposite the first wall (Col.7, lines 18-26), wherein the first wall length and the second wall length are each greater than each of the first end length and the second end length (i.e. the longitudinal medial & lateral side walls would be longer than the toe end & heel end lengths), the base member having an upper portion (56) extending between the first wall and the second wall, and a lower portion (48) extending between the first wall and the second wall, the lower portion positioned opposite the upper portion and hingedly connected to the upper portion along the first wall length so as to form an angled opening (void containing 46,47) between the upper portion and the lower portion, the angled opening positioned at a first angle, the angled opening extending along the second wall length (as seen in Fig.4, 8 & 8a); an orthotic wedge (46,47) positioned within the angled opening formed by the upper portion and the lower portion, the orthotic wedge having a top surface (i.e. surface facing 56) and a bottom surface (i.e. surface facing 48) positioned opposite from, and at an orthotic angle to, the top surface, wherein the orthotic angle is smaller than the first angle of the angled opening (as seen in Fig.4, 5, 5a, 8, and 8a), wherein the orthotic wedge has a first sidewall (50) having a first sidewall height and a second sidewall (49) having a second sidewall height positioned opposite the first sidewall, wherein the first sidewall height is greater than the second sidewall height thereby defining the orthotic angle, wherein the second sidewall is positioned proximate to the second wall of the base member (as seen in Fig.4, 5, 5a, 8, and 8a); and at least one upper shoe member (57) connected to the top surface of the base member (as seen in Fig.4, 8 & 8a). Darby does not disclose the orthotic wedge has a shape extending from the first end to the second end. However, Riddle teaches a shoe having a sole (10/84) with an orthotic wedge (16) having a shape extending from a first end (i.e. toe end) to a second end (i.e. heel end)(as seen in Fig.1A, 1C & 5C; para.57).
Therefore, it would have been obvious to one having ordinary skill in the art to have modified the orthotic wedges of Darby to be a continuous wedge extending from the first end to the second end, as taught by Riddle, in order to provide a contoured surface that redistributes the load at the knee or ankle joint of a person wearing the shoe, making for a more supportive and comfortable shoe.
Response to Arguments
In view of Applicant's amendment, the search has been updated, and new prior art has been identified and applied. Applicant's arguments have been considered but are moot in view of the new ground(s) of rejection.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
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/MEGAN E LYNCH/Primary Examiner, Art Unit 3732