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 .
Information Disclosure Statement
The information disclosure statement (IDS) dated 09/06/2023 has been received and considered.
Claim Objections
Claims 1-7 are objected to because of the following informalities. Appropriate correction is required.
Claim 1 appears to have a typographical error in line 3 “un upper” should be “an upper sole”, and line 4 should read “of the upper sole”.
Claims 2 and 3 are objected to because they include reference characters which are not enclosed within parentheses. Reference characters corresponding to elements recited in the detailed description of the drawings and used in conjunction with the recitation of the same element or group of elements in the claims should be enclosed within parentheses so as to avoid confusion with other numbers or characters which may appear in the claims. See MPEP § 608.01(m).
Claim 5 appears to have an extraneous word in line 6 between reference numbers, which should be corrected as follows: “the top and bottom housings (11, 12) of the casing”.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitations are:
“Vibration means” in claim 5. This structure is interpreted to mean a set of magnets which induce a vibration through the repulsive force of magnets based on fig. 8 and page 9, second para.
Because this claim limitations are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, they are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have these limitations interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation to avoid them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitations recite sufficient structure to perform the claimed function so as to avoid being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Where applicant acts as his or her own lexicographer to specifically define a term of a claim contrary to its ordinary meaning, the written description must clearly redefine the claim term and set forth the uncommon definition so as to put one reasonably skilled in the art on notice that the applicant intended to so redefine that claim term. Process Control Corp. v. HydReclaim Corp., 190 F.3d 1350, 1357, 52 USPQ2d 1029, 1033 (Fed. Cir. 1999). The term “relay” in claim 4 is used by the claim to apparently mean a housing for the magnet, while the accepted meaning is an electrically operated switch. The term is indefinite because the specification does not clearly redefine the term.
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.
Claims 1 and 3 are rejected under 35 U.S.C. 103 as unpatentable over Yang (KR 20050116516 A), hereafter Yang, in view of Park (US 2009/0282704 A1), hereafter Park. A machine translation of Yang is relied upon to address claims.
Regarding Claim 1, Yang discloses a health-promoting functional shoe having a function of stimulating a solar plexus point (fig. 3, page 2 first para.), the functional shoe comprising: un upper (fig. 3, insole 20, page 3, first para.); a middle sole (fig. 3, outsole 10, page 3, first para.) disposed on a bottom surface of the upper (fig. 3 shows this configuration); an outsole (fig. 3, the bottom surface of the outsole 10) disposed on a bottom surface of the middle sole (fig. 3); a recess (fig. 3, holding groove 11, page 2, end of first para.) recessed downward in an area corresponding to a sole of a forefoot of a wearer or a sole of a hindfoot of the wearer (fig. 2, groove 11 is shown in the hindfoot area of the wearer), on an upper surface of the middle sole (fig. 2 and fig. 3 shows 11 as located on the upper surface of 10); a vibration unit (fig. 3, 40, page 2, second para. halfway down) disposed to be inserted into the recess (fig. 3); and an acupressure unit (fig. 3, 90 located in the forefoot region, page 3, first para, end of para.) comprising a plurality of receiving space portions (fig. 2 shows 90 being inserted into a space in 20) formed to be concave downward (fig. 2 shows the opening as a hole downward) while being disposed in a form surrounding the vibration unit (fig. 2 shows this configuration, and a plurality of elastic springs (figs. 3 and 4, first and second springs 31, 32, page 3 line 3).
Yang is silent on the receiving space portions being located on the upper surface of the middle sole (the acupressure unit is located through the surface of the upper sole, fig. 2), as well as silent on the plurality of springs being fitted into individual receiving space portions.
Park teaches a functional shoe (fig. 1, S, title) which includes a plurality of receiving space portions located in an upper surface of a middle sole (fig. 1, middle sole 40, insertion holes 41 [0047]) and an upper sole (fig. 1, 20 [0047]) which includes a plurality of springs, each located in an individual receiving hole (fig. 2, springs 61 [0056]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to place the receiving space portions in the middle sole underneath each of Yang’s acupressure units (fig. 3, 90), each with a spring, as taught by Park, in order to provide an increased bouncing force for the foot (Park [0056]) which benefits the user through shock absorption (Park [0011]).
Regarding Claim 3, Yang as modified discloses a functional shoe of claim 1, further comprising: a stimulation unit (figs. 2 and 3, acupressure unit 90 located in the mid-foot region, is also magnetic, page 1 [0024]), a mounting space portion recessed downward in an area facing the wearer's solar plexus point on the upper surface of the middle sole (as modified by Park, the recesses for all instances of Yang’s 90 can be located in the middle sole, as modified from the upper sole shown in Yang fig . 2), and a magnet disposed to be inserted into the mounting space portion (Yang, 90 is magnetic, page 1 [0024]).
Claim 2 is rejected under 35 U.S.C. 103 as unpatentable over Yang and Park, further in view of Wang (WO 2022/135582 A1), hereafter Wang.
Regarding Claim 2, the modified Yang discloses a functional shoe of claim 1, wherein each of the receiving space portions (as modified by Park, fig. 1, 41) of the acupressure unit has a snap groove (Park fig. 6b, concave grooves 62, 63 [0056]) formed along an inner circumferential surface adjacent to a bottom surface of the each of the receiving space portions (Park fig. 6b, 63 is located circumferentially inside the receiving space at the bottom).
However, the modified device is silent on a lower end of each of the elastic springs is forcibly fitted into the snap groove and fixed.
Wang teaches a configuration of placing springs with a massage point (fig. 5, page 4 “Fig. 5” para.) for a sole of a shoe (fig. 30, page 5 “Fig. 30” para.) shows using a configuration which the springs are snap fit into a slot (fig. 5, page 12, last two full paras.).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the connection of the springs in the receiving space portions to be fixed into the snap grooves as taught by Wang to prevent the springs from sliding and simplify the construction (Wang, last full para. page 12).
Claim 4 is rejected under 35 U.S.C. 103 as unpatentable over Yang and Park, further in view of Nichelson (US 6405456 B1), hereafter Nichelson.
Regarding Claim 4, Yang as modified discloses a functional shoe of claim 3, but is silent on wherein the stimulation unit further comprises a relay (as best understood based on the 112(b) rejection above, to be a support surrounding the magnet) made from stainless steel disposed along an area between the mounting space portion and the magnet (Yang shows magnet 90 placed directly in the mounting space portion).
Nichelson teaches the use of stainless steel supports for magnets within a mounting space of a middle sole of a shoe (figs. 1 and 3, col. 5 line 3 and lines 35-36).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include a stainless steel relay disposed between the mounting space and the magnet as taught by Nichelson, since stainless steel supports were known in the art as a means of supporting magnets in a shoe sole.
Claims 5-7 are rejected under 35 U.S.C. 103 as unpatentable over Yang and Park, further in view of Kim et al. (KR 20210014550 A), hereafter Kim. A machine translation is relied upon to address claims.
Regarding Claim 5, Yang discloses a functional shoe of claims 1, wherein the vibration unit (fig. 3, 40) comprises: a casing (fig. 6, 51, 52, page 3, first para, line 14) in which a top housing (fig. 6, 51) and a bottom housing (fig. 6, 52) are coupled to each other to form a receiving portion (fig. 6 shows an exploded drawing, where the shown components fit internally to 51 and 52 when assembled, page 3, first para.) therein;
However, Yang is silent on a vibration frame interposed between the top and bottom housings and of the casing; a first vibration plate having a second end thereof connected to the vibration frame and a first end thereof disposed in the receiving portion of the casing; a second vibration plate having a second end thereof connected to the vibration frame and a first end thereof disposed in the receiving portion of the casing, but having a structure facing the first vibration plate while being disposed side by side with the first vibration plate; and a vibration means for vibrating the first and second vibration plates up and down by magnetic force. Instead, Yang uses an eccentric rotating mass to induce vibrations (fig. 6, 62, page 3 first para.).
Kim teaches a vibration unit having a vibration frame (fig. 9a, 18 [0097]) interposed between the top and bottom housings (fig. 9a, 42, 41 [0045]) of the casing (fig. 9a, 4, [0043]); a first vibration plate (fig. 9a, 171 [0098]) having a second end thereof connected to the vibration frame (fig. 9a, 171 is attached at one end at 18) and a first end thereof disposed in the receiving portion (fig. 9a shows an exploded drawing of the entire vibration member 1 being disposed inside the case 4 [0095]) of the casing; a second vibration plate (fig. 9a, 172 [0098]) having a second end thereof connected to the vibration frame (fig. 9a, 172 is attached to another end of 18) and a first end thereof disposed in the receiving portion of the casing (fig. 9a shows this configuration), but having a structure facing the first vibration plate while being disposed side by side with the first vibration plate (fig. 9a shows 171 and 172 disposed side by side); and a vibration means for vibrating the first and second vibration plates up and down by magnetic force (fig. 9a, vibration magnets 2 and 3 [0095]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to simply substitute Yang’s vibration unit with the structure taught by Kim, to predictably be equally able to produce a vibration effect, as well as to remove the need for applied power and to leverage the user’s walking to amplify the vibration (Kim [0013]).
Regarding Claim 6, Yang as modified by Kim discloses a functional shoe of claim 5, wherein each of the first and second vibration plates (Kim fig. 9a 171, 172) comprises: a support (see annotated fig. 9a) connected to the vibration frame (fig. 9a 18); a branch branching from an end of the support (see annotated fig. 9a); and a pair of discs (see annotated fig. 9a) respectively provided at ends of the branch (annotated fig. 9a shows this configuration).
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Regarding Claim 7, Yang modified by Kim discloses a functional shoe of claim 6, each branch has a multi-bending structure in which a direction of bending is switched more than n times (n is an integer equal to or greater than 2) (see annotated fig. below).
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Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Aeschbach (US 5473963) discloses the use of a stainless steel backing plate for supporting magnets in the sole of a shoe (fig. 4, backing plate 52, magnets 72, col. 3 lines 22-25).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SARA K. TOICH whose telephone number is (703)756-1450. The examiner can normally be reached M-Th 7:30 am - 4:30 pm, every other F 7:30-3:30 ET.
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/SARA K TOICH/Examiner, Art Unit 3785
/BRANDY S LEE/Supervisory Patent Examiner, Art Unit 3785