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 without traverse of Species I, shown in figures 1A and 1B in the reply filed on 6/2/25 is acknowledged.
It is noted that applicant has stated that all of the claims read on the elected species however claims 5, 10, and 15 recited “a plurality of discrete recesses” which is not shown in Species I shown in figures 1A and 1B and therefore claims 5, 10, and 15 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 6/2/25.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the pods arranged on the upper surface of a footbed as claimed in claims 6-10 and 17 and pods arranged in a plurality of layers as claimed in claims 16-18 must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
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.
Claims 16-18 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
In claims 16-18 the phrase “plurality of pods are arranged in a plurality of layers” is confusing, vague, and indefinite because it is not clear what structural limitations applicant intends to encompass with such language, there is no figure showing such and it is not clear if pods are stacked on one another, are there additional attachment structures, do they slide, are the pods made from a plurality of layers, or if the pods are layered with other elements or some other limitation.
In claim 17 the phrase “first wherein the plurality” is confusing, awkward, and it is not clear what applicant intends by such language.
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.
Claim(s) 1-4, 11-14, 16, and 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kellerman (5154682) in view of either Clark (2006/0107553) or Short (10051916).
Kellerman shows A footbed (see figures 5-10 and/or 19-21) comprising:
a first surface and a second surface opposing the first surface (see figures);
a first plurality of pods (34) coupled to the first surface, each of the plurality of pods
having a pod thickness (see figures); and
a second plurality of pods (see figure 22 and column 3 lines 40-58 and column 7 lines 3-20) having at least one characteristic different from the first plurality of pods,
wherein each of the first plurality of pods is removable from the first surface (see figures 7 and/or 20);
wherein each of the second plurality of pods is configured to replace the first plurality of pods when removed in order to alter the footbed (see figure 22 and column 3 lines 40-58 and column 7 lines 3-20),
wherein removal of one of the plurality of pods reduces a thickness of the
footbed according to the pod thickness (see figures) substantially as claimed except for wherein the at least once characteristic is selected from hardness, density, and breathability. Either Clark or Short teaches providing a kit having replaceable pieces/pods to customize a footbed wherein the pieces/pods have different hardnesses or densities (see paragraph [0077] or see column 2 lines 23-27). It would have been obvious to provide alternate pieces/pods with different hardnesses or densities as taught by either Clark or Short in the footbed/kit of Kellerman to allow the user to customize the footbed hardness and densities.
In reference to claims 2 and 12, see figures 7 and 20 and column 6 lines 14-16 and lines 54-55.
In reference to claims 3 and 13, see figure 6.
In reference to claims 4 and 14, see figures 6 and/or 19.
In reference to claims 11-14, a kit with a shoe is shown in figures 11-14 and the addition of a plurality of alternate pods (see figure 22) and discussed in column 3 lines 40-58 and column 7 lines 3-20 and Either Clark or Short teaches providing a kit having replaceable pieces/pods to customize a footbed wherein the pieces/pods have different hardnesses or densities (see paragraph [0077] or see column 2 lines 23-27). It would have been obvious to provide alternate pieces/pods with different hardnesses or densities as taught by either Clark or Short in the footbed/kit of Kellerman to allow the user to customize the footbed hardness and densities.
In reference to claims 16 and 18 the pods of Kellerman are considered to be arranged in a plurality of layers inasmuch as applicant has shown such.
Claim(s) 6-9 and 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over the references as applied to claims 1-4, 11-14, 16, and 18 above, and further in view of Grim (5329705).
Kellerman as modified above shows a system substantially as claimed except for the orientation of the footbed. Grim teaches orienting the footbed with the removable pods on the upper surface (see figures 2 and 3 which show the pods attached to an upper surface of the footbed). It would have been obvious to orient the footbed as taught by Grim in the system of Kellerman as modified above to allow easy access to the removable pods.
Response to Arguments
Applicant's arguments filed 6/8/26 have been fully considered but they are not persuasive.
In response to applicants’ arguments directed towards the objection to the drawings, the drawings do no show the pods arranged on the upper surface of a footbed as claimed in claims 6-10 and 17 and pods arranged in a plurality of layers as claimed in claims 16-18. According to under 37 CFR 1.83(a) the drawings must show every feature of the invention specified in the claims and the drawings do not show the above features.
Applicant’s arguments with respect to claim(s) have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
The prior art cited and not relied upon by the Examiner for the above rejections are considered to be pertinent in that the references cited are considered to be the nearest prior art to the subject matter defined in the claims as required by MPEP707.05.
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Any inquiry concerning the MERITS of this examination from the examiner should be directed to Marie Bays whose telephone number is (571) 272-4559. The examiner can normally be reached from Mon-Thurs 6-4.
/MARIE D BAYS/Primary Examiner, Art Unit 3732
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