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 .
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.
Claims 1, 4-12, 14-15, 17-18, and 23-28 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.
Claim 1 is rejected because it recites limitations “said textile sole element” in lines 4 and 10. There is insufficient antecedent basis for this limitation in the claim. It is not clear what said textile sole element is since there can be more the just one sole element.
Claim 1 is rejected because it recites limitations “the textile sole element” in line 9. There is insufficient antecedent basis for this limitation in the claim. It is not clear what said textile sole element is since there can be more the just one sole element.
Any remaining claims are rejected as depending from a rejected base claim.
In the art rejections below the claims have been treated as best understood by the examiner.
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.
Claims 1, 4-12, 14-15, 17-18, 23-24, 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).
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 textile sole element and particles (para 0295), wherein said sole element comprises a tubular sole part comprising at least one housing (figs 2 and 6), said tubular sole part comprising one or several at least partly hot-melted first yarn (para 0377), wherein said particles (member 142) 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), and wherein at least the textile sole element and the particles are thermocompressed and molded as a whole (para 0152), said 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.
Levy does not teach a sole element comprises a knitted.
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.
Regarding claim 4, the modified sole element Levy-Tamm discloses the particles comprise first particles having a first melting or softening temperature, or a degradation temperature, higher than or equal to 200⁰C (i.e. copolymer, Levy, para 0369) and second particles having a second melting or softening temperature lower than or equal to 180⁰C (i.e. polyamide, Levy, para 0303).
Regarding claim 5, the modified sole element Levy-Tamm 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 discloses the particles comprise cushioning particles (Levy, para 0296).
Regarding claim 7, the modified sole element Levy-Tamm discloses the particles comprise at least partly biosourced particles (Levy, para 0386 and 0401).
Regarding claim 8, the modified sole element Levy-Tamm 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 discloses the particles comprise mobile particles (Tamm, para 0122).
Regarding claim 10, the modified sole element Levy-Tamm discloses said 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 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 13, the modified sole element Levy-Tamm 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, figs 5).
Regarding claim 14, the modified sole element Levy-Tamm 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 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 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 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 23, the modified sole element Levy-Tamm discloses 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 (Levy, para 0226).
Regarding claim 24, the modified sole element Levy-Tamm discloses the particles derived from at least one recycled and crushed element are particles derived from at least one chosen among: recycled shoe sole(s), shoe upper(s), shoe(s), and a combination thereof (Levy, 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.
Regarding claim 26, 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 textile sole element and particles (para 0295), wherein said textile sole element comprises a tubular sole part comprising at least one house (figs 2 and 6), said tubular sole part comprising one or several at least partly hot-melt first yarn (para 0377), wherein said particles are disposed in said at least one housing of the tubular sole part, wherein the particles comprise at least partly hot-melted particles (para 0021), and wherein at least the textile sole element and the particles are thermocompressed and molded as a whole (para 0152), said 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, the 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 (figs 6-7), wherein the particles occupy at least 60% of the total volume of said textile sole element (figs 2-3C).
Levy does not teach a sole element comprises a knitted.
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.
Regarding claim 27, the modified sole element Levy-Tamm 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, Levy teaches a footwear article wherein said footwear article comprises a sole assembly element forming all or part of at least one of an outsole and a midsole, and an upper (figs 1-7), said sole assembly element comprises at least one textile sole element and particles (para 0295), wherein said textile sole element comprises a tubular sole part comprising at least one housing (figs 2 and 6), said knitted tubular sole part comprising one or several at least partly hot-melted first yarn (para 0377), wherein said particles are disposed in said at least one housing of the knitted tubular sole part, wherein the particles comprise at least partly hot-melted particles (para 0021), and wherein at least the textile sole element and the particles are thermocompressed and molded as a whole (para 0152), said 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.
Levy does not teach a sole element comprises a knitted and 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.
Tammy teaches a sole element comprises a knitted (para 0043) and 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 (para 0057).
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 and sock of Tammy in order to make manufacturing in simple, cost-effective and little waste production.
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 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.
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.
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-4pm.
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BAO-THIEU L. NGUYEN
Primary Examiner
Art Unit 3732
/BAO-THIEU L NGUYEN/Primary Examiner, Art Unit 3732