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 .
Specification
The specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required: Claims 3 and 4; 11 and 12; 18 and 19 recite the textile component can be a woven or a nonwoven. The specification does not provide any details or description of a textile that has three sections with three different yarns, fusible; non-fusible and bulking with respect to a woven textile structure and nonwoven textile structure. The specification is limited to describing a knit textile component.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-4 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Tuscia et al (Wo2015100369 cited as US 20170029989).
Tuscia is directed to textile constructs formed with fusible filaments. Tuscia teaches the formation of the textile construct is based on fusion of selected filaments, e.g., thermoplastic fibers or yarns, to selectively create a film on one side or layer in the construct while substantially preserving the lattice structure of an opposing side or adjacent layer of non-fusible filaments in a lattice structure. This creates a hybrid film/lattice textile construct. Both open-faced and sandwiched constructions of the film in a unitary structure with the retained lattice structure of another side or layer(s) are possible (ABST).
Tuscia teaches the inventive subject matter is also directed to a method of forming a textile construct, which may include the steps of: providing a composite lattice structure comprising an arrangement of (i) a first group of fusible filaments in a first lattice structure and (ii) a second group of non-fusible filaments in a second lattice structure, the first and second lattice structures being coextensively intermeshed to form the composite lattice structure, with the fusible filaments being selectively disposed primarily on one side of the composite lattice structure; and subjecting the composite lattice structure to a fusing agent, e.g., chemical, thermal, IR, ultrasonic, electromagnetic, electric, and/or pressure, sufficient to selectively cause the fusible filaments in the first lattice structure to fuse into a film substantially on one side or layer of the construct while maintaining the second lattice structure substantially in a discrete lattice structure [0032]. In some possible embodiments of methods, the composite lattice structure further comprises a third group of non-fusible filaments in a third lattice structure on an opposite side of the film as the second lattice structure [0033]. In this embodiment, the first layer is the fused film, the second layer are the of non-fusible yarns and the third layer is the non-fusible filaments which meets the claim limitations. In some embodiments, the non-fusible yarns can be shrinkable yarns are incorporated to tightened up the technical back and face together [0151] and equated with the second section as claimed. Shrinkable yarns are equated with bulking yarns as Tuscia teaches the shrinking of the non-fusible fiber shortens their length and may bulk up the yarn [0151], [0152].
Tuscia teaches a first section with a fusible yarn and a second section with a non-fusible yarn and a third section of non-fusible yarns. Tuscia teaches shrinkable non-fusible yarns can be additional textured yarns (as shown in Fig. 16A,B). Tuscia teaches that it is believed that same shrinkable yarns, condensing or shrinking based on filament component becoming helix like under heat or stress and thereby shortening and bulking the surrounding filaments [0152] and the textured multifilament polyester yarn is wrapped around a core bundle of yarns and used as some of the non-fusible yarns.
The shrinkable non-fusible yarns can be spun yarn or air textured yarns and shrinkage of 5-40% during application of heat or pressure [0092]. The shrinkable non-fusible yarns provide for tightening of the knit structure, pulling the technical back and face together and allowing the fusible material to flow into gaps [0151].
Tuscia teaches the textile constructs can be used in apparel, footwear or equipment [0087], [0089], [0124].
Tuscia teaches various embodiments wherein the fusible yarns can be on the outer face or an intermediate section [0128]. Wherein Tuscia teaches the fusible film layer can be outer or intermediate. Tuscia teaches three sections of fused yarn, shrinkable (non-fusible bulking) yarns and non-fusible yarns.
As to claim 1, it would have been obvious to one of ordinary skill in the art before the effective filing date to employ a textile with first, second and third sections of different yarns motivated to produce an article of footwear with a fused film surface and a non-fusible backing and bulking, shrinkable yarns to tightening the front face and technical back.
As to claims 2, Tuscia teaches a knit textile.
As to claims 3 and 4, Tuscia teaches a knit or woven structure (ABST), [0009], [0014] as well as non-woven structures [0072].
As to claim 8, Tuscia teaches the textile can be incorporated into footwear [0087], [0089], [0124].
Claims 5-7 and 9-20 are rejected under 35 U.S.C. 103 as being unpatentable over Tuscia et al (US 20170029989) in view of Podhajny (US 20140245633).
As to claims 5-7, 9 and 16, Tuscia teaches the knitted textile construct can be used in footwear but is not specific with regard to an arch support, a heel region or a heel counter.
Podhajny is directed to an article of footwear includes an upper with a knitted component formed of unitary knit construction. The knitted component has a first edge and a second edge. The knitted component also includes a base portion configured to be disposed adjacent the sole structure and to be disposed under a foot. The knitted component further includes a heel portion, a forefoot portion, a medial portion, and a lateral portion. The knitted component additionally includes a collar with a rim. The second edge is joined to the first edge at a seam. The seam has a first end and a second end, wherein the first end is located generally at the rim of the collar on one of the medial side and the lateral side of the upper. The second end is spaced from the first end (ABST), [0008].
Podhajny teaches the lacing system also permits the wearer to modify certain dimensions of the upper, particularly girth, to accommodate feet with varying dimensions. In addition, the upper may include a tongue that extends under the lacing system to enhance adjustability of the footwear, and the upper may incorporate a heel counter to limit movement of the heel [0005]. The knitted component also includes a heel portion and a forefoot portion that are formed of unitary knit construction with the base portion [0009]. Podhajny teaches the knitted component 116 can include a upper 120 and a base portion. The base portion 124 can extend continuously underneath one or more portions of the heel, the sole, the toes and the arch [0071]. The arch can be supported with a strand 158 [0104] and therefore Podhajny teaches a knitted textile arch support. Podhajny teaches a heel and heel counter of the knit textile to limit movement of the heel.
Podhajny teaches the knit component can include fusible and non-fusible yarn [0067]. Podhajny teaches the use of fused yarns that are heated and inlaid may provide the effect of stiffening or rigidifying the structure of the knitted component and secures and locks the relative positions of yarn and inlaid strands [0068]. Additionally, the knitted component can have varying zones that collectively form the unitary knit construction [0069].
As to claims 5-7, 9 and 16, it would have been obvious to one of ordinary skill in the art before the effective filing date to incorporate a knit textile construct into an article footwear motivated to provide arch and heel support.
As to claims 10 and 17, Tuscia teaches a knit textile.
As to claims 11, 12, 18 and 19, Tuscia teaches a knit or woven structure (ABST), [0009], [0014] as well as non-woven structures [0072].
As to claim 13, Tuscia teaches the structure wherein there is an outer fusible layer section, a shrinkable (bulk) yarns that tighten the face and technical back and another outer face of non-fusible yarns. Tuscia teaches the fusible layer can be outer or intermediate and Tuscia teaches first, second and third groups of filaments and as the shrinkable (bulk) filaments tighten the face and technical back, the bulking filaments are located within the knit structure and located in between the first and third section.
It would have been obvious to one of ordinary skill in the art before the effective filing date to locate the bulking filaments internal to the knit structure motivated to tighten the technical back and face layers.
As to claims 14 and 20, Tuscia teaches the textile can be provided with a range of elasticity or conversely rigidity by selecting filaments having desired material properties [0086]. Tuscia teaches the fusible fibers are melted to form a fused film which provides for a membrane layer that has waterproofness, water resistance, wind resistance and breathability [0002], [0007], [0008], [0011], [0061]. The inventive subject matter is directed to a textile construct, and related methods of construction, wherein fusible filaments, such as thermoplastic yarns or fibers in a lattice are melted to form a textile construct that has a fused film on one side or layer while another side or layer is maintained in a discrete knitted structure. The fused film may provide various functional or performance attributes. For example, it may serve as a complete or partial barrier to air and water. It may serve as a stretchable layer for form fitting. It may serve as durable or protective layer against abrasion or impact force. Any combination of such functional properties may engineered into a textile construct according to the inventive subject matter [0067].
Tuscia does not explicitly teach the melted fused film is rigid, but as Tuscia teaches the same structure and materials of a melted fused film, it is reasonable to presume that the property of rigidity is inherent. As Tuscia teaches the properties can be engineered into a textile, it would have been obvious to one of ordinary skill in the art before the effective filing date to produce a rigid backing from melted fusible filaments motivated to provide a layer against abrasion or impact force.
As to claim 15, Tuscia does not teach a heel counter.
Podhajny teaches the knit upper is used as a heel counter.
It would have been obvious to one of ordinary skill in the art before the effective filing date to incorporate a knit textile construct into an article footwear motivated to provide heel support.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1, 2, 5-10, 13, 14, 16, 17 and 20 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, 3, 5, 6, 9, 10, 11, 12, 13, 14, 15 of U.S. Patent No. 12018409. Although the claims at issue are not identical, they are not patentably distinct from each other because both the instant invention and the US Patent claim an article of footwear that can be an arch, a heel and heel counter; claims 1, 5, 6, 7, 8, 9, and 16 of instant claims and claim 1 and 15 claim an arch support and a heel counter. Both the instant claims and the US Patent claim a first section of a fusible yarn, a second section of a bulking yarn and a third section of a non-fusible yarn; instant claims 1, 9 and 16 and US Patent claims 1 and 9. Both the instant claims and the US Patent claim a knitted component; instant claims 2, 10 and 17. Both the instant claim and the US Patent claim a third section form an inner-facing surface of the article of footwear and second section located between the first and third section, claim 13 of instant claims and claims 1 and 9 of US Patent. Both the instant claims require a fused yarn is thermoplastic and melted and resolidified to form a rigid backing, instant claims 14 and 20 and US Patent claims 6, 9 and 12.
Claims 1, 2, 5-10, 14-17 and 20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 5 of U.S. Patent No. 11,492730. Although the claims at issue are not identical, they are not patentably distinct from each other because both the instant claims and the US Patent claim a knitted arch support with a first layer formed from fusible yarn, a second knit layer formed from non-fusible yarn and a bulking yarn between the fusible and non-fusible sections; instant claims 1 and 2, 9 and 10 and 16 and 17 as claim in US Patent claim 1. The instant claims 5-8, 15, require and arch support and a heel and heel counter. As the structure of the US Patent claim 1 is the same as the instant claims 1, 9 and 16, the claims to a heel and heel counter are statement of use and do not differentiate from the US Patent. Both the instant claims require a fused yarn is thermoplastic and melted and resolidified to form a rigid backing, instant claims 14 and 20 and US Patent claim 5.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Greene et al (US 20110078921)
An article of footwear may incorporate various elements that are at least partially formed through a knitting process, such as a circular knitting process or a flat knitting process. Examples of the elements include tongue elements, collar elements, and collar-throat elements. In some configurations, the elements include compressible areas and flange areas. The compressible areas may include foam cores or floating yarns that impart compressibility, and the flange areas may be utilized to join the components to the article of footwear.
Upper 30 also includes a collar element 50 that is located in at least heel region 13. The upper may include a tongue that extends under the lacing system to enhance adjustability of the footwear, and the upper may incorporate a heel counter to limit movement of the heel [0042].
Dua et al (US 20100199520)
A non-woven textile may be formed from a plurality of thermoplastic polymer filaments. The non-woven textile may have a first region and a second region, with the filaments of the first region being fused to a greater degree than the filaments of the second region. A variety of products, including apparel (e.g., shirts, pants, footwear), may incorporate the non-woven textile. In some of these products, the non-woven textile may be joined with another textile element to form a seam. More particularly, an edge area of the non-woven textile may be heatbonded with an edge area of the other textile element at the seam. In other products, the non-woven textile may be joined with another component, whether a textile or a non-textile.
[0154] A third configuration of footwear 400 is depicted in FIGS. 39C and 40C. Various fused regions 104 are formed in non-woven textile 100. One of fused regions 104 extends around and is proximal to ankle opening 421, which may add greater stretch-resistance to the area around ankle opening 421 and assists with securely-retaining the foot within upper 420. Another fused region 104 is located in the heel region and extends around a rear area of the footwear to form a heel counter that resists movement of the heel within upper 420. A further fused region 104 is located in the forefoot area and adjacent to the sole structure, which adds greater durability to the forefoot area.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNIFER A STEELE whose telephone number is (571)272-7115. The examiner can normally be reached 9-5:30.
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/JENNIFER A STEELE/Primary Examiner, Art Unit 1789
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