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 .
Response to Amendment
The amendments filed on 02/05/2026 have been entered. Claims 1-17 remain pending in the application, with Claims 2-8, 10, 11, and 13 being withdrawn, Claims 1 and 17 being newly amended.
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, 9, 12, and 15-17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Linton (US 3256621) in view of Polegato Moretti (US 2007/0011907).
Regarding Claim 1, Linton teaches a sole structure (1, 2, 3, 4) comprising: a tread (1), which includes at least one portion of breathable material (col. 1 ll. 20 teaches “leather outsole 1,” wherein leather is a breathable material as disclosed on page 5 of the instant specification); a midsole (3) coupled to said tread (figs. 2 and 3 show the midsole (3) coupled to the tread (1)), said midsole having: at least one first channel (3a), the at least one first channel includes a first and second ventilation ports (see annotated Fig.) for the fluidic communication with the outside environment, the first ventilation port is located at a first end of the channel and the second ventilation port is located at a second end of the channel opposite the first end such that the first and second ventilation ports are located on opposite sides of the sole structure (annotated fig. 3 shows the first ventilation port, and as col. 1 ll. 33-35 teaches “the midsole 3 has in its under surface a plurality of parallel linear slots 3a extending transversely of the shoe from one edge to the other,” there is clearly a second ventilation port that is located at a second end of the channel opposite the first port, as the channel extends from one side of the midsole to the other side, making the first and second ventilation ports located on opposite sides of the sole structure), and at least one first through opening (3b) in fluidic communication with said at least one first channel, such that the at least one first through opening opens into the at least one first channel (figs. 2 and 3 show the through opening (3b) opening into the first channel so as to be in fluidic communication with the first channel).
Linton does not teach a waterproof and breathable functional element which seals the at least one first openings in a waterproof manner.
Attention is drawn to Polegato Moretti which teaches an analogous article of footwear. Polegato Moretti teaches a sole structure (See fig. 3) comprising a tread (112), and a midsole (111) coupled to said tread (fig. 3 shows the midsole (111) being coupled to the tread (112)), said midsole having: at least one first channel (107) the at least one first channel includes a ventilation port (see annotated Fig.) for the fluidic communication with the outside environment at each of a first and of the channel and at a second end of the channel opposite the first end (annotated fig. 3 shows the midsole (111) having a first channel (107) with a ventilation port at each of the first and the second end of the channel, each being in fluidic communication with the outsole environment (as shown by the dashed arrow)), at least one first through opening (117a) in fluidic communication with said at least one first channel (fig. 3 shows the first through opening (117a) in fluidic communication with the at least one first channel (117a)), and a waterproof and breathable functional element (116) which seals said at least one first opening in a waterproof manner (fig. 3 shows the element (116) sealing the at least one first opening (117a); paragraph [0075] “A vapor-permeable and waterproof membrane 116”).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Linton to include the teachings of Polegato Moretti such that the sole structure comprises a waterproof and breathable functional element which seals the at least one first openings in a waterproof manner so as to keep the wearer’s foot dry from water coming in from the external environment while keeping the sole breathable, therein increasing the comfort of the wearer (paragraph [0075] “A vapor-permeable and waterproof membrane 116”).
Regarding Claim 9, modified Linton teaches all of the limitations of the sole structure of Claim 1, as discussed in the rejections above.
Linton does not teach wherein the tread comprises a body made of polymeric material.
Attention is drawn to Polegato Moretti which teaches an analogous article of footwear. Polegato Moretti teaches a sole structure (See fig. 3) comprising a tread (112) which comprises at least one portion of breathable material (paragraph [0017], “there is a tread, which makes contact with the ground and can be made of synthetic material (rubber, polyurethane), natural material (leather), or mixed material,” wherein leather is a breathable material noted in pg. 5 ll. 5-6 of the instant specification), and a midsole (111) coupled to said tread (fig. 3 shows the midsole (111) being coupled to the tread (112)), said midsole having: at least one first channel (107) the at least one first channel includes a ventilation port (see annotated Fig.) for the fluidic communication with the outside environment at each of a first and of the channel and at a second end of the channel opposite the first end (annotated fig. 3 shows the midsole (111) having a first channel (107) with a ventilation port at each of the first and the second end of the channel, each being in fluidic communication with the outsole environment (as shown by the dashed arrow)), at least one first through opening (117a) in fluidic communication with said at least one first channel (fig. 3 shows the first through opening (117a) in fluidic communication with the at least one first channel (117a)), and a waterproof and breathable functional element (116) which seals said at least one first opening in a waterproof manner (fig. 3 shows the element (116) sealing the at least one first opening (117a); paragraph [0075] “A vapor-permeable and waterproof membrane 116”). Polegato Moretti further teaches wherein the tread comprises a body made of polymeric material (paragraph [0017], “there is a tread, which makes contact with the ground and can be made of synthetic material (rubber, polyurethane), natural material (leather), or mixed material,” wherein when the tread is made of a mixed material including rubber or polyurethane and leather, it clearly comprises a breathable material and a polymeric material).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Linton to include the teachings of Polegato Moretti such that the tread comprises a body made of polymeric material so as to allow the tread to be durable and extend the usable life for the wearer.
Regarding Claim 12, modified Linton teaches all of the limitations of the sole structure of Claim 1, as discussed in the rejections above. Linton further teaches wherein said at least one portion of breathable material is made of leather (col. 1 ll. 20 teaches “leather outsole 1,” therein at least one portion of breathable material can clearly be made of leather, as leather is a breathable material noted in pg. 5 ll. 5-6 of the instant specification).
Regarding Claim 15, modified Linton teaches a shoe (see fig. 1) characterized in that it comprises a sole structure (1, 2, 3, 4) according to Claim 1 (fig. 1 shows a shoe comprising the sole structure (1, 2, 3, 4), wherein Linton as modified in Claim 1 above clearly teaches all of the limitations of the sole structure according to Claim 1).
Regarding Claim 16, Linton teaches a sole structure (1, 2, 3, 4) comprising: a tread (1), which includes at least one portion of breathable material (col. 1 ll. 20 teaches “leather outsole 1,” wherein leather is a breathable material as disclosed on page 5 of the instant specification); a midsole (3) coupled to said tread (figs. 2 and 3 show the midsole (3) coupled to the tread (1)), said midsole having: at least one first channel (3a), the at least one first channel includes a ventilation port (see annotated Fig.) for the fluidic communication with the outside environment at each of a first end of the channel and at a second end of the channel opposite the first end (annotated fig. 3 shows the ventilation port at the first end of the channel, and as col. 1 ll. 33-35 teaches “the midsole 3 has in its under surface a plurality of parallel linear slots 3a extending transversely of the shoe from one edge to the other,” there is clearly also a ventilation port that is located at a second end of the channel opposite the first port, as the channel extends from one side of the midsole to the other side), and at least one first through opening (3b) in fluidic communication with said at least one first channel (figs. 2 and 3 show the through opening (3b) being in fluidic communication with the first channel) wherein the at least one first channel extends across an entire width of the sole from a first side of the sole to a second side of the sole opposite the first side (col. 1 ll. 33-35 teaches “the midsole 3 has in its under surface a plurality of parallel linear slots 3a extending transversely of the shoe from one edge to the other,” therein the channel clearly extends across an entire width of the sole from a first side to an opposite second side).
Linton does not teach a waterproof and breathable functional element which seals the at least one first openings in a waterproof manner.
Attention is drawn to Polegato Moretti which teaches an analogous article of footwear. Polegato Moretti teaches a sole structure (See fig. 3) comprising a tread (112) which comprises at least one portion of breathable material (paragraph [0017], “there is a tread, which makes contact with the ground and can be made of synthetic material (rubber, polyurethane), natural material (leather), or mixed material,” wherein leather is a breathable material noted in pg. 5 ll. 5-6 of the instant specification), and a midsole (111) coupled to said tread (fig. 3 shows the midsole (111) being coupled to the tread (112)), said midsole having: at least one first channel (107) the at least one first channel includes a ventilation port (see annotated Fig.) for the fluidic communication with the outside environment at each of a first and of the channel and at a second end of the channel opposite the first end (annotated fig. 3 shows the midsole (111) having a first channel (107) with a ventilation port at each of the first and the second end of the channel, each being in fluidic communication with the outsole environment (as shown by the dashed arrow)), at least one first through opening (117a) in fluidic communication with said at least one first channel (fig. 3 shows the first through opening (117a) in fluidic communication with the at least one first channel (117a)), and a waterproof and breathable functional element (116) which seals said at least one first opening in a waterproof manner (fig. 3 shows the element (116) sealing the at least one first opening (117a); paragraph [0075] “A vapor-permeable and waterproof membrane 116”).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Linton to include the teachings of Polegato Moretti such that the sole structure comprises a waterproof and breathable functional element which seals the at least one first openings in a waterproof manner so as to keep the wearer’s foot dry from water coming in from the external environment while keeping the sole breathable, therein increasing the comfort of the wearer (paragraph [0075] “A vapor-permeable and waterproof membrane 116”).
Regarding Claim 17, Linton teaches a sole structure (1, 2, 3, 4) comprising: a tread (1), which includes at least one portion of breathable material (col. 1 ll. 20 teaches “leather outsole 1,” wherein leather is a breathable material as disclosed on page 5 of the instant specification); a midsole (3) coupled to said tread (figs. 2 and 3 show the midsole (3) coupled to the tread (1)), said midsole having: at least one first channel (3a), the at least one first channel includes a first and second ventilation ports (see annotated Fig.) for the fluidic communication with the outside environment, the first ventilation port is located at a first end of the channel and the second ventilation port is located at a second end of the channel opposite the first end such that the first and second ventilation ports are located on opposite sides of the sole structure (annotated fig. 3 shows the first ventilation port, and as col. 1 ll. 33-35 teaches “the midsole 3 has in its under surface a plurality of parallel linear slots 3a extending transversely of the shoe from one edge to the other,” there is clearly a second ventilation port that is located at a second end of the channel opposite the first port, as the channel extends from one side of the midsole to the other side, making the first and second ventilation ports located on opposite sides of the sole structure), and at least one first through opening (3b) in fluidic communication with said at least one first channel, such that the at least one first through opening opens into the at least one first channel (figs. 2 and 3 show the through opening (3b) opening into the first channel so as to be in fluidic communication with the first channel), wherein the at least one first channel extends across an entire width of the sole from a first side of the sole to a second side of the sole opposite the first side (col. 1 ll. 33-35 teaches “the midsole 3 has in its under surface a plurality of parallel linear slots 3a extending transversely of the shoe from one edge to the other,” therein the channel clearly extends across an entire width of the sole from a first side to an opposite second side).
Linton does not teach a waterproof and breathable functional element which seals the at least one first openings in a waterproof manner.
Attention is drawn to Polegato Moretti which teaches an analogous article of footwear. Polegato Moretti teaches a sole structure (See fig. 3) comprising a tread (112) which comprises at least one portion of breathable material (paragraph [0017], “there is a tread, which makes contact with the ground and can be made of synthetic material (rubber, polyurethane), natural material (leather), or mixed material,” wherein leather is a breathable material noted in pg. 5 ll. 5-6 of the instant specification), and a midsole (111) coupled to said tread (fig. 3 shows the midsole (111) being coupled to the tread (112)), said midsole having: at least one first channel (107) the at least one first channel includes a ventilation port (see annotated Fig.) for the fluidic communication with the outside environment at each of a first and of the channel and at a second end of the channel opposite the first end (annotated fig. 3 shows the midsole (111) having a first channel (107) with a ventilation port at each of the first and the second end of the channel, each being in fluidic communication with the outsole environment (as shown by the dashed arrow)), at least one first through opening (117a) in fluidic communication with said at least one first channel (fig. 3 shows the first through opening (117a) in fluidic communication with the at least one first channel (117a)), and a waterproof and breathable functional element (116) which seals said at least one first opening in a waterproof manner (fig. 3 shows the element (116) sealing the at least one first opening (117a); paragraph [0075] “A vapor-permeable and waterproof membrane 116”).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Linton to include the teachings of Polegato Moretti such that the sole structure comprises a waterproof and breathable functional element which seals the at least one first openings in a waterproof manner so as to keep the wearer’s foot dry from water coming in from the external environment while keeping the sole breathable, therein increasing the comfort of the wearer (paragraph [0075] “A vapor-permeable and waterproof membrane 116”).
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Claim(s) 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Linton (US 3256621) in view of Polegato Moretti (US 2007/0011907), and further in view of Byrne (US 2008/0127519).
Regarding Claim 14, Linton teaches all of the limitations of the sole structure of Claim 1, as discussed in the rejections above.
Linton is silent and therein does not teach wherein said midsole is made of one or more materials which have: - a ratio between the elastic and viscous components, determined according to method B of the ASTM D 395-03 standard, of less than approximately 55%, elastic rebound, determined according to method B of the ASTM D 1054-2000 standard, at least equal to 40%.
Attention is drawn to Byrne, which teaches an analogous article of footwear. Byrne teaches a sole structure (36) comprising a tread (40), which includes at least one portion of breathable material (paragraph [0037], “the outsole 40 may be constructed from polyurethane, thermo plastic rubber, nitro polyvinyl chloride, latex rubber, leather, or any other material or combination of materials known in the art,” wherein when the outsole comprises leather as one material of the combination of materials, it clearly comprises at least one portion of breathable material, as leather is a breathable material noted on pg. 5 Il. 5-6 of the instant specification), a midsole (50) coupled to said tread (paragraph [0037], “the resilient midsole 50 is affixed to the upper surface 42 of the outsole 40 with an adhesive, stitching, or some other means known in the art to maintain the midsole 50 and outsole 40 in relative proximity,” wherein the outsole (40) is considered as equivalent to the tread), said midsole having: at least one first channel (52), the at least one first channel includes a ventilation port for the fluidic communication with the outside environment at each of a first end (56) of the channel and at a second end {see annotated Fig.} of the channel opposite the first end (figs. 1-3 show the at least one first channel (52) having a ventilation port at the first end (56) and at the second end, both being in fluidic communication with the outside environment. Examiner notes that annotated fig. 3 shows the ventilation port being in fluidic communication with the outsole via the dashed arrow showing the fluid flow direction), at least one first through opening (54) in fluidic communication with said at least one first channel (fig. 3 shows the at least one first through opening (54) being in fluidic communication with the at least one first channel (52)). Byrne further teaches wherein the midsole is made of ethyl vinyl acetate foam (see paragraph [0037]), which is disclosed in the instant specification as a material for the midsole that has the desired properties (see pg. 5 ll. 9-11 of the instant specification). Further, the ratio between the elastic and viscous components and the elastic rebound of a material are results effect variables. The ratio of elastic to viscous components must be high enough so provide enough cushioning to the wearer, but low enough to ensure the wearer has sufficient support. The elastic rebound must be high enough to absorb sufficient shock from the wearer’s movement, but low enough so as to provide some stability for the wearer. It would have been obvious to one having ordinary skill in the art at the time the invention was made to create the invention of the prior art with a midsole having a material with a ratio between the elastic and viscous components of less than approximately 55% and an elastic rebound at least equal to 40% since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980). In the present invention, one would have been motivated to optimize the cushioning, support, shock absorption, and stability provided by the midsole of the sole structure.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Linton to include the teachings of Byrne such that said midsole is made of one or more materials which have: - a ratio between the elastic and viscous components, determined according to method B of the ASTM D 395-03 standard, of less than approximately 55%, elastic rebound, determined according to method B of the ASTM D 1054-2000 standard, at least equal to 40% so as to optimize the cushioning, support, shock absorption, and stability of the midsole. Examiner notes that while neither Linton, Byrne, or Polegato Moretti teach using the ASTM methods as recited in the claim above to determine the ratio and elastic rebound of the material, these methods are known in the art to be used to determine these values (see extrinsic evidence: Young (US 3912973), table in col. 4 and Servier Jr. et al. (US 4192366), table 2). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the claimed test methods to determine the claimed properties.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1, 9, 12, 14, and 15 have been considered but are moot because the new ground of rejection necessitated by amendment. Therefore, see aforementioned rejections for the argued missing limitations.
Regarding the 35 U.S.C. 103 rejection of Claim 1, Applicant submits that Linton in view of Polegato Moretti is not proper as the art is not-analogous and there is no “concrete technical motivation” to combine the teachings (pg. 7 of remarks).
Regarding the analogous arts, Applicant submits that Linton and Polegato are not analogous as they have different fluidic architectures and construction logistics, with Polegato departing from the design logistics of Linton. Examiner notes that neither of these are the tests for analogous arts. References are analogous to the claimed invention if the references are from the same field of endeavor OR if the reference is reasonably pertinent to the problem faced by the inventor (MPEP 2141.01(a)). Examiner notes that Linton and Polegato are analogous with the instant invention and the prior art by both of these tests. Linton, Polegato, and the instant invention all fall into the same field of endeavor of footwear, and even more specifically ventilated, breathable footwear (instant invention abstract, “a sole structure comprising a tread, which comprises at least one portion of breathable material”; Linton, col. 1 ll. 10, “this invention related to a ventilated shoe”; Polegato abstract “A vapor-permeable and waterproof sole for shoes”). Examiner notes that "The field of endeavor is ‘not limited to the specific point of novelty, the narrowest possible conception of the field, or the particular focus within a given field.’" Therein the same “fluidic architecture,” “construction logistics” or “design logistics” is clearly too narrow of a focus to be considered the field of endeavor. Along similar lines, Linton, Polegato, and the instant invention all clearly are directed towards solving the same problem, the problem being wearer’s feet being uncomfortable and moist, and therefore in need of breathable, ventilated footwear.
In support of non-analogousness Applicant submits that Polegato does not teach a tread made of breathable material, and therein the tread of Polegato has a different “construction philosophy” as the tread is “not entrusted” with vapor permeability (pg. 8 of remarks). Further, Applicant submits that Polegato does not teach the first channel having two ventilation ports at opposite sides of the sole structure, or the through opening opening into the first channel. Examiner agrees that Polegato does not teach these elements, and notes that the rejection above does not assert that Polegato does teach these limitations. However, requiring every single limitation of the claim to make art analogous would unnecessarily narrow the field of endeavor. Polegato is not relied upon for the teaching of these limitations, therein Polegato is not required to teach the above mentioned limitations.
For at least these reasons, Examiner notes that Linton, Polegato, and the instant invention are all analogous to one another, and therein the 35 U.S.C. 103 obviousness rejection is reasonable.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning (or ex post construction), it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Conclusion
7/ 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to HALEY A SMITH whose telephone number is (571)272-6597. The examiner can normally be reached Monday - Thursday 7:00 am - 5:00 pm.
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/HALEY A SMITH/Primary Examiner, Art Unit 3732