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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 05-07-2026 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.
Claim(s) 1, 4-12, 14-15, 17-18, and 26-28 is/are rejected under 35 U.S.C. 103 as being unpatentable over Levy et al. (2021/0147650) in view of Tamm et al. (2019/0380424) and Yumiba et al. (2021/0147650).
Regarding claim 1, Levy teaches a sole assembly element forming all or part of at least one of an outsole and a midsole (figs 1-7), wherein said sole assembly element comprises at least one sole element and particles (para 0295), wherein said at least one sole element is a tubular sole part comprising at least one housing (fig 2 and 6), said tubular sole part comprising one or several at least partly hot-melted first yarn(s) (para 0377),
wherein said particles are disposed in said at least one housing of the tubular sole part (fig 2),
wherein the particles comprise at least partly hot-melted particles (para 0021),
wherein the particles comprise particles which are bonded to each other and with one or several at least partly hot-melted first yarn(s) of the housing receiving the particles (para 0295), and
wherein said at least one textile sole element and the particles are thermocompressed and molded as a whole (para 0152),
said at least one textile sole element comprises at least one of its outer face and its inner face that comprises a negative (fig 2) or positive molded cavity, and
wherein the at least one textile sole element extends at least partly in a least one of a heel region of the sole assembly element, a midfoot region of the sole assembly element, and a forefoot region of the sole assembly element, and wherein the at least one textile sole element extends between a medial edge and a lateral edge of the sole assembly element (figs 1 and 6-7), and
wherein the particles comprise particles chosen among particles derived from recycled shoe sole(s), particles derived from shoe upper(s), particles derived from shoe(s), or a combination thereof (para 0020, any shoe can be recycled).
It is noted that the lack of physical description in a product-by-process claim makes determination of the patentability of the claim more difficult, since in spite of the fact that the claim may recite only process limitations, it is the patentability of the product claimed and not of the recited process steps which must be established. We are therefore of the opinion that when the prior art discloses a product which reasonably appears to be either identical with or only slightly different than a product claimed in a product-by-process claim, a rejection based alternatively on either section 102 or section 103 of the statute is eminently fair and acceptable. As a practical matter, the Patent Office is not equipped to manufacture products by the myriad of processes put before it and then obtain prior art products and make physical comparisons therewith.” In re Brown, 459 F.2d 531, 535, 173 USPQ 685, 688 (CCPA 1972). Office personnel should note that reliance on the alternative grounds of 35 U.S.C. 102 or 35 U.S.C. 103 does not eliminate the need to explain both the anticipation and obviousness aspects of the rejections. MPEP 2113.
Levy does not teach a sole element comprises a closed front knitted tubular.
Tammy teaches a sole element comprises a knitted (para 0043).
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claim invention to modify the sole of Levy by using a knitted sole of Tammy in order to make manufacturing in simple, cost-effective and little waste production.
Yumiba teach a knitted tubular comprising a closed front/end (para 0009 and 0030).
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claim invention to modify the sole of Levy by closing the front end, as taught by Yumiba, in order to keep the particles in place.
Regarding claim 4, the modified sole element Levy-Tamm-Yumiba discloses the particles comprise first particles having a first melting or softening temperature, or a degradation temperature, higher than or equal to 200°C (i.e. copolymer, Levy, para 0369) and second particles having a second melting or softening temperature lower than or equal to 180°C (i.e. polyamide, Levy, para 0303).
Regarding claim 5, the modified sole element Levy-Tamm-Yumiba discloses the particles comprise particles having at least one dimension greater than or equal to 1 mm (Levy, para 0184).
Regarding claim 6, the modified sole element Levy-Tamm-Yumiba discloses the particles comprise cushioning particles (Levy, para 0296).
Regarding claim 7, the modified sole element Levy-Tamm-Yumiba discloses the particles comprise at least partly biosourced particles (Levy, para 0386 and 0401).
Regarding claim 8, the modified sole element Levy-Tamm-Yumiba discloses the particles comprise particles derived from at least one recycled and crushed element (Levy, para 0020).
Regarding claim 9, the modified sole element Levy-Tamm-Yumiba discloses the particles comprise mobile particles (Tamm, para 0122).
Regarding claim 10, the modified sole element Levy-Tamm-Yumiba discloses said at least one textile sole element extends at least partly in a heel region of the sole assembly element, at least partly in a midfoot region of the sole assembly element, and at least partly in a forefoot region of the sole assembly element, and wherein the textile sole element extends between a medial edge and a lateral edge of the sole assembly element (Levy, figs 1-5).
Regarding claim 11, the modified sole element Levy-Tamm-Yumiba discloses the sole assembly element according to wherein said at least one housing is a longitudinal housing extending at least partly in a heel region of the sole assembly element or at least partly in a forefoot region of the sole assembly element (Levy, figs 1-7).
Regarding claim 12, the modified sole element Levy-Tamm-Yumiba discloses the sole assembly element according to wherein said textile sole element comprises several housings which are textile housings, and comprises particles disposed in each of said textile housings, the textile housings each comprise one or several at least partly hot-melted yarn (Levy, fig 5, para 0377).
Regarding claim 14, the modified sole element Levy-Tamm-Yumiba discloses a footwear article wherein said footwear article comprises at least one sole assembly element according to claim 1 (Levy, fig 1).
Regarding claim 15, the modified sole element Levy-Tamm-Yumiba discloses said footwear article comprises an upper comprising at least a first textile element comprising a knitted tubular upper part, and wherein said knitted tubular upper part comprises one or several at least partly hot-melted second yarn(s), the knitted tubular sole part and the knitted tubular upper part are two separate knitted parts (Tamm, para 0179 and 0226).
Regarding claim 17, the modified sole element Levy-Tamm-Yumiba discloses the first textile element is a knitted sock, and wherein the sole assembly element is at least a part chosen from: a part of a midsole, a part of an outsole, or a combination thereof (Tamm, fig 12a).
Regarding claim 18, the modified sole element Levy-Tamm-Yumiba discloses the footwear article comprises a foot-receiving void configured to receive a foot, and wherein the sole assembly element is removable and configured to be disposed in the foot-receiving void (Tamm, para 0253).
Regarding claim 26, the modified sole element Levy-Tamm-Yumiba discloses the particles occupy at least 60% of the total volume of said textile sole element (figs 2-3C).
Regarding claim 27, the modified sole element Levy-Tamm-Yumiba discloses said at least one housing is a longitudinal housing extending at least partly in the heel region of the sole assembly element and at least partly in a forefoot region of the sole assembly element (figs 1 and 6-7).
Regarding claim 28, the modified sole element Levy-Tamm-Yumiba discloses said upper comprising at least a first textile element comprising a knitted sock, said knitted sock comprises one or several at least partly hot-melted second yarn(s), and wherein the knitted tubular sole part is in knitted connection with a knitted sole part of the knitted sock (Tamm, para 0057).
Claim(s) 25 is/are rejected under 35 U.S.C. 103 as being unpatentable over Levy et al. (2021/0147650) and Tamm et al. (2019/0380424) as applied to claim 1 above, and further in view of Graham et al. (5,402,588).
Regarding claim 25, the modified sole element Levy-Tamm-Yumiba teaches all limitations except said textile sole element comprises at least one viewing window allowing visualizing for the wearer of all or part of the particles from the outside of the sole assembly element.
Graham teaches a sole having a window allowing visualizing for the wearer from the outside of the sole (col 2, lines 42-45).
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claim invention to modify the sole of Levy by adding a clear window of Graham in order to permit inspection of the particles.
Response to Arguments
Applicant’s arguments, dated 04-03-2026, with respect to the rejection of claims under 35 U.S.C §112(b) have been fully considered, and are persuasive. The rejection to the claims has been withdrawn due to the amendments to the claims.
Applicant's arguments, date 04-03-2026, with respect to the rejections of claims under 35 U.S.C §103 have been fully considered, but they are not persuasive.
Argument 1: applicant argues that the prior art does not teach the amended limitations “a closed front knitted tubular”. However, this argument is not commensurate with the rejected claims, as the limitations have not been previously presented and they have been address as analyzed above.
Argument 2: applicant argues that Levy does not teach “knitted tubular sole part comprising one or several at least partly hot-melted first yarn”. However, the examiner respectfully disagrees since Levy teaches the limitation in para 0377.
Argument 3: applicant argues that Levy does not teach “hot-melted particles”. However, the examiner respectfully disagrees since Levy teaches the limitation in para 0021 and 0295.
Argument 4: applicant argues that Levy does not teach “the particles comprise particles which are bonded to each other and with one or several at least partly hot- melted first yarn(s) of the housing receiving the particles”. However, the examiner respectfully disagrees since Levy teaches the limitation in para 0303 and 0369.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BAO-THIEU L NGUYEN whose telephone number is (571)270-0476. The examiner can normally be reached M-F 7am-3pm.
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BAO-THIEU L. NGUYEN
Primary Examiner
Art Unit 3732
/BAO-THIEU L NGUYEN/ Primary Examiner, Art Unit 3732
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