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 .
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.
Claim Objections
Claims 1-17 are objected to because of the following informalities: Please use blank ink for better legibility.
In claim 1, the “An” for “An upper”, “An outsole”, “An insole”, “An Achilles pad” & “An elevated heel”, should be -- an - -.
Claim Rejections - 35 USC § 101
Section 33(a) of the America Invents Act reads as follows:
Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.
Claims 1-17 are rejected under 35 U.S.C. 101 and section 33(a) of the America Invents Act as being directed to or encompassing a human organism. See also Animals - Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (indicating that human organisms are excluded from the scope of patentable subject matter under 35 U.S.C. 101).
Claim 1 appears to positively claim portions of the human anatomy such as “the heel of the foot” and “the ball of the foot”, which is not patent eligible subject matter. If Applicant chooses to leave such language in the claims it is suggested that Applicant adopt language such as "configured to" or "adapted to" raise the heel of the foot in relation to the ball of the foot.
Appropriate correction is required.
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 1-17 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 appears to positively claim portions of the human anatomy such as “the heel of the foot” and “the ball of the foot”, which is not patent eligible subject matter. If Applicant chooses to leave such language in the claims it is suggested that Applicant adopt language such as "configured to" or "adapted to" raise the heel of the foot in relation to the ball of the foot.
Appropriate correction is required.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1-2, 4-5 & 7 are rejected under 35 U.S.C. 103 as being unpatentable over Durand (US 7,621,058) in Norton (US 4,559,722).
With respect to claim 1, Durand discloses a luxury comfortable shoe (shoe, see figure 4) comprising:
an upper portion (10, see figure 4);
an outsole (leather base layer 1 & stretchable layer 2, see figures 1-4) which is made of two components (1 & 2), the first component (sole base 1, see figures 1-4) a leather portion; and a second component a rubber insert (stretchable part 2 with lugs 3), where the first leather component has a plurality of openings (4, see figure 3) and the second rubber component has a plurality of protrusions (lugs 3, see figure 3) such that the plurality of openings (4) are complementary to the plurality of protrusions (lugs 3 of the stretchable insert are positioned in the openings 4 made in the base of the sole) of the outsole;
an insole (insole 5, see figure 3);
an elevated heel (high heel, see figure 4) where the top of the heel is raised in comparison to the bottom of the protrusion (3, see figure 4) extending from the outsole such as the heel of the foot is configured to be raised in relation to the ball of a foot.
Durand does not explicitly disclose an Achilles pad, where the Achilles pad is further comprising of a cushioning section. Norton discloses a luxury comfortable shoe with a backtab 26 which includes a notch 40 which may be seen in FIGS. 2 and 3. As is clear from the Figures the backtab 26 generally is in the area of the rear of the foot to enclose the Achilles tendon, while the notch provides an area in the backtab which accommodates the tendon. The notch, therefore, provides the important function of eliminating or substantially reducing stress and pressure on the Achilles tendon during the gait cycle of the runner and the risk of aggravation from the shoe construction whose upper quarter and backstay are raised toward the ankle for increased support of the foot. Backtab 26 includes inner and outer layers 28, 30 (referring to the inside and outside of the shoe) of a sheet material and an intermediate layer 32 of a cushioning material. The sheet material such as vinyl sheet provides an inner and outer surface cover for the intermediate layer which may be formed of high density polyurethane foam. The intermediate layer may be about 10-15 mm in thickness, or possibly of even greater thickness as determined by manufacturing and wear considerations. Backtab 26 includes inner and outer layers 28, 30 of a sheet material and an intermediate layer 32 of a cushioning material. The sheet material such as vinyl sheet provides an inner and outer surface cover for the intermediate layer which may be formed of high density polyurethane foam. The intermediate layer may be about 10-15 mm in thickness, or possibly of even greater thickness as determined by manufacturing and wear considerations. Therefore, it would have been obvious to one of ordinary skill in the art to provide an Achilles pad to the shoe of Durand as taught by Norton to provide the important function of eliminating or substantially reducing stress and pressure on the Achilles tendon during the gait cycle.
With respect to claim 2, Durand/Norton discloses a footwear sole where the forepart is associated with a stretchable material making it possible to fit differing foot widths easily. It would have been obvious to one of ordinary skill in the art to make the toe box to be between 8.7cm to 11.3cm, since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955). Discovery of an optimum value of a result effective variable in a known process is ordinarily within the skill of the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980). Where general conditions of a claim are disclosed in the prior art it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 105 USPQ 233 (CCPA 1955).
With respect to claim 4, Durand/Norton discloses that the distance between the top of the upper portion and the outsole to appear to be in the range between 30mm-70mm (see figure 4). It would have been obvious to one of ordinary skill in the art to make the distance between the top of the upper portion and the outsole to be in the range between 30mm-70mm, since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955).
Discovery of an optimum value of a result effective variable in a known process is ordinarily within the skill of the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980). Where general conditions of a claim are disclosed in the prior art it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 105 USPQ 233 (CCPA 1955).
With respect to claim 5, Durand/Norton discloses the elevated heel to have a heel protector that is attached to the bottom of the elevated heel, see figure 4. Duran discloses that the sole base is manufactured from a classic type of material such as leather used traditionally for the manufacture of shoe soles and possessing the normal abrasion resistance specifications. Therefore, it would have been obvious to one of ordinary skill in the art to make the heel protector of Duran/Norton from leather, since Duran discloses the sole base can be manufactured from a classic type of material such as leather, elastomer, rubber, polyurethane or any other material used traditionally for the manufacture of shoe soles and possessing the normal abrasion resistance specifications.
It has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
With respect to claim 7, Duran/Norton discloses the Achilles pad/backtab 26 includes inner and outer layers 28, 30 of a sheet material and an intermediate layer 32 of a cushioning material. The sheet material such as vinyl sheet provides an inner and outer surface cover for the intermediate layer which may be formed of high density polyurethane foam. The intermediate layer may be about 10-15 mm in thickness, or possibly of even greater thickness as determined by manufacturing and wear considerations. It would have been obvious to one of ordinary skill in the art to make the Achilles pad of the luxury comfortable shoe of Duran/Norton comprise of a cushioning section that is encapsulated by suede material, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Claim(s) 3 is rejected under 35 U.S.C. 103 as being unpatentable over Duran/Norton as applied to claim 1 above, and further in view of LaDuca (US 7,730,634).
With respect to claim 3, Duran/Norton discloses all the limitations of the claims except for wherein the upper portion further comprises a gusset that is triangular. LaDuca discloses a luxury comfortable shoe wherein the flexibility of the shoe is further aided by a pair of triangular elastic inserts or gussets in the left and right sides of the upper toe box of the shoe upper above the arch (see figure 1, 2 & 3). It would have been obvious to one of ordinary skilled in the art to provide triangular gusset to the upper portion of Duran/Norton as taught by LaDuca to aid further with the flexibility of the shoe.
Claim(s) 5-6 are rejected under 35 U.S.C. 103 as being unpatentable over Duran/Norton as applied to claim 1 above, and further in view of Haupenthal (USPN 0826,504).
With respect to claim 5, Duran/Norton discloses an elevated heel that comprises a protector attached to the bottom of the elevated heel (see figure 4). Duran/Norton is silent to the material of the protector.
With respect to claim 6, Duran/Norton discloses where the elevated heel is further comprised of a front portion and a back portion and a heel protector is placed on the bottom of the heel. Duran discloses the sole base can be manufactured from a classic type of material such as leather, elastomer, rubber, polyurethane or any other material used traditionally for the manufacture of shoe soles and possessing the normal abrasion resistance specifications. Duran/Norton does not disclose that a rubber protector is partially placed on the bottom back portion of the heel and that is primarily made of leather such that the rubber protector is integrated and on the same plane as the remainder of the heel. Haupenthal discloses that it is old and conventional to the bottom of an elevated heel. Furthermore, Huppenthal discloses that it is old and conventional to place a rubber protector partially on the bottom back portion of the heel and that is primarily made of leather such that the rubber protector is integrated and on the same plane as the remainder of the heel (see figures 1-5) to better preserve the bottom of the heel from wear and tear. It would have been obvious to one of ordinary skilled in the art to place a rubber protector partially on the bottom back portion of the heel and that is primarily made of leather such that the rubber protector is integrated and on the same plane as the remainder of the heel of Duran/Norton as taught by Huppenthal, to better preserve the bottom of the heel from wear and tear.
Claim(s) 8-17 are rejected under 35 U.S.C. 103 as being unpatentable over Duran/Norton as applied to claims 1-7 above, and further in view of Tadin (Pub. No. US 2004/0194344).
With respect to claim 8, Duran/Norton discloses wherein the insole (5) is comprised of a from portion, middle portion and a back portion (see figure 3) and is further comprising of an arch support that is located in the middle portion of the insole (insole 5 is equipped with a foot forepart made deformable by the presence of longitudinal slits 6 and a rigid back part 7, see figure 3); a flex zones that are comprised of indentations (slits 6) that allow expansion and flexibility of the insole during movement located at the bottom of the front portion of the insole.
Duran/Norton discloses the insole to be deformable but is silent about comprising a memory foam, a heel crash pad wherein the heel crash pad is located in the back portion of the insole, a metatarsal foot pad.
Tadin discloses a user-customizable insole for insertion into footwear in place of a conventional removable insole. The insole can have a built-in orthopedic contour, including a plurality of integral foot supports. An upwardly curved metatarsal arch support can be formed in base insole to support of the metatarsal bones of the foot. The metatarsal arch support can begin at the forward edge 52 of the frontal area 51. An upwardly curved lateral cuboid support can be formed in base insole to support the cuboid bone of the foot. An upwardly curved lateral arch support is formed in base insole to support the lateral arch curve of the foot. An upwardly curved medial longitudinal arch support is formed in base insole to support the medial longitudinal arch curve of the foot. The medial longitudinal arch support provides support for the calcaneus or heel bone of the foot in relation to the plantar fascia to help prevent the calcaneus bone from rotating to a more horizontal orientation as happens in the abnormal foot condition called fallen arches. The insole made of a resilient cushioning material such as foam and can comprise a heel crush pad (horseshoe shaped heel support 182, see figure 11). Each elevation curve 70, 72, 74, and 76 defines a corresponding space (not shown) with the inside bottom of the footwear such that the foot supports 66, 67, 68, and 69 may flex downwardly under a predetermined foot pressure providing a suspension effect to reduce shock and provide selected support to the wearer's foot and provide greater comfort during walking, jogging, or running. Therefore, it would have been obvious to one of ordinary skill in the art to replace the insole of Duran/Norton with the customizable insole of Tadin to better support the plantar surface of a wearer's foot.
Therefore, it would have been obvious to one of ordinary skill in the art to make the middle portion of the insole of Duran/Norton/Tadin from memory foam, since Tadin discloses that other similar cushioning materials including open and closed cell foams may be used.
It would have been obvious to one of ordinary skill in the art to have the plurality of indentations of Duran/Norton/Tadin to be crisscrossed, since such a modification would have involved a mere change in shape of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966).
The insole of Duran/Norton/Tadin will have a front portion, a middle portion and a back portion and further comprising of an arch support, a heel crash pad, a metatarsal foot pad, and flex zones.
With respect to claim 9, Duran/Norton/Tadin discloses the upper insole is of a flexible homogenous or monolithic construction made of a single resilient cushioning material, such as ethylene-vinyl acetate polymer (EVA), though other similar cushioning materials including open and closed cell foams may be used. Therefore, it would have been obvious to one of ordinary skill in the art to make the middle portion of the insole of Duran/Norton/Tadin from memory foam, since Tadin discloses that other similar cushioning materials including open and closed cell foams may be used.
With respect to claim 10, Tadin discloses a plurality of heel locating pins 795 of the heel support 744 are adapted to engage the heel locating holes 769 of the heel cup 766 to correctly position the heel support 744 on the base insole 742. Alternatively, the heel support 744 can have the heel locating holes 769 and the heel cup 766 have the mating heel locating pins 795. Therefore, it would have been obvious to one of ordinary skill in the art to provide a plurality of openings in the arch support of Durand/Norton/Tadin for an additional removable arch support element that features a plurality of protrusions that are complementary to the plurality of openings of the arch support as taught by Tadin, since Tadin discloses protrusion and openings for removable connection of support elements.
With respect to claim 11, Duran/Norton/Tadin discloses the heel crash pad located in the back portion of the insole is horseshoe shaped (182 of Tadin).
With respect to claim 12, it would have been obvious to one of ordinary skill in the art to make heel crash pad of Duran/Norton/Tadin from polyurethane foam, since Tadin discloses that other similar cushioning materials including open and closed cell foams may be used.
With respect to claim 13, Duran/Norton/Tadin discloses the metatarsal crash pad located in the front portion of the insole further comprise a plurality of raised protrusions that extend horizontally and curved in shape (Tadin discloses the underside of the foot supports 256, 257, 258, and 259 comprise corresponding upwardly curved elevation curves 261, 262, 263, and 264 which are disposed above the inside bottom of the footwear).
With respect to claim 14, Duran/Norton/Tadin discloses the insole having a top portion and a bottom portion, with the flex zones located in the front bottom portion of the insole, comprising of plurality of indentations or depressions (see figure 3 of Duran). Tadin discloses the metatarsal arch support 482 begins at the forward edge 469 of the forefoot portion 467 and includes one or more slots 484 therethrough which extend from the forward edge 469 rearwardly into the metatarsal arch support 482; The base insole 560 includes an upper surface 562 which is contoured to provide support to the plantar surface of the wearer's foot and a longitudinally ribbed lower surface 564 adapted to engage the inside bottom of the footwear, wherein the metatarsal crash pad can be located at the top portion.
With respect to claim 15, it would have been obvious to one of ordinary skill in the art to have the plurality of indentations or depressions of Duran/Norton/Tadin to further comprise of horizontal and vertical lines that are perpendicular to one another, since such a modification would have involved a mere change in shape of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966).
With respect to claim 16, Duran/Norton/Tadin discloses the top portion of the insole to further comprise a fabric cover that is made of synthetic textile material. Tadin discloses the upper insole may be of a flexible sandwiched construction comprising a flexible cloth sheet bonded to a body made of a flexible resilient cushioning material. The cloth sheet is preferably made of an abrasion resistant material, such as synthetic fabric (Alcantara fabric), nylon, dacron, felt, cloth, or the like. It would have been obvious to one of ordinary skill in the art to make the synthetic fabric of Duran/Norton/Tadin from microfiber sueds, since Tadin discloses any type of synthetic fabric. It has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
With respect to claim 17, Official Notice is taken that it is old and conventional to treat the fabric cover for and insole with an antimicrobial solution, to control odor. Therefore, it would have been obvious to one of ordinary skill in the art in view of the Official Notice to provide antimicrobial solution to the fabric cover of Groove/Norton/Tadin to better control odor.
With respect to claim 5, Groove discloses further comprising a leather protector that is attached to the bottom of the heel (heel projection 32f & 32g includes one of a plurality of outsole sections 34f-34g that impart a durable and abrasion-resistant lower surface to projections 32f-32g. Suitable materials for outsole sections 34a-34g include any of the various rubber materials, see figures 4-5).
With respect to claim 6, Groove discloses the luxury comfortable shoe to further comprising a front portion and a back portion and the rubber protector (34f-g) is placed on the back portion of the heel (primary elements of sole structure 30 are a foot-supporting element 31 and a plurality of projections 32a-32g. Foot-supporting element 31 extends from heel portion 11 to forefoot portion 13).
Response to Arguments
Applicant’s arguments with respect to claim(s) 1-17 have been considered but are moot because the new ground of rejection does not rely on any reference as applied and as combined in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Shown are luxury comfortable shoes analogous to applicant’s instant invention.
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 JILA M MOHANDESI whose telephone number is (571)272-4558. The examiner can normally be reached M-Thurs. 7:00-5:00 EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Alissa J Tompkins can be reached on 571-272-3425. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JILA M MOHANDESI/Primary Examiner, Art Unit 3732
JMM
11/14/2025