Notice of Pre-AIA or AIA Status
The present application, filed on or after March 12, 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 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.
DETAILED ACTION
The present amendment, filed on June 11, 2026, in which claims 1-20 were presented for examination, of which claims 1, 3, 6, 10, 14, 18, and 19 were amended, is being examined under the first inventor to file provisions of the AIA .
Response to Arguments
Applicant's arguments filed June 11, 2026 have been fully considered but they are not persuasive.
Applicants Argument: The Office is relying only on Zavala describing zones with different elastic properties But Zavala does not disclose an elongate portion that runs along at least one side of the second zone and towards an upper heel region or the specific relation of the distinct zones. Thus, the rejection is premised on an improper hindsight reconstruction of Zavala, rather than on what Zavala actually discloses. More specifically, The Office relies on an annotated version of Zavala's FIG. 6 to identify alleged "extensions" or elongate portions corresponding to the claimed first zone. However, these features are not described in Zavala itself and instead appear to be constructed by The Office through post hoc interpretation.
Examiners Response: Examiner respectfully disagrees. No modification of Zavala, in regards to claims 1, 2, 4, 7-13, 16, 19, and 20, was made. Examiner annotates Fig. 6 of Zavala to show where the Applicants claimed limitation(s) are, given the claims being interpreted under their broadest reasonable interpretation. Examiner notes the heading in the Non-Final Rejection dated March 11, 2026 erroneously listed the statutory basis rejection of claims 1, 2, 4, 7-13, 16, 19, and 20 as 35 U.S.C. 103, when the statutory basis should have been 35 U.S.C. 102(a)(1); Examiner has corrected this in the present Office Action. In regards to the Applicants amended limitations, Zavala discloses the limitations as claimed, as shown in-depth below.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 2, 4, 7-13, 16, 19, and 20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Zavala et al. “Zavala” (US PG Pub. 2015/0047225).
Regarding claim 1, Zavala discloses an article of footwear (100), comprising: a knitted heel region (152, Fig. 1-3 and 5-6), comprising: a first zone (228, Fig. 6) comprising a thermoplastic polymer material that is fused (Par. 0068, lines: 14-20); and a second zone (230) that has a higher degree of elasticity than the first zone (Par. 0066, lines: 1-4 and Par. 0068, lines: 14-18, examiner notes the first zone has more resistance to being stretched compared to the second zone), wherein the first zone comprises an elongate portion (see annotated Fig. 6 below. Examiner notes that the term "portion" is very broad and merely means "a section or quantity within a larger thing; a part of a whole" (Defn. No. 1 of "American Heritage® Dictionary of the English Language, Fifth Edition" entry via TheFreeDictionary.com)) extending towards an upper heel region (region 232) and along at least one side of the second zone (as shown in annotated Fig. 6 below, where the annotated elongate portion is along at least one side of the second zone, 230), and wherein the first zone (228) extends below the second zone (230) between the second zone (230) and a sole structure (110, examiner notes as shown in Fig. 1-3 and annotated Fig. 6 below).
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Fig. 6-Examiner Annotated
Regarding claim 2, Zavala discloses wherein the first zone (228) includes a yarn comprising the thermoplastic polymer material (Par. 0068, lines: 14-16).
Regarding claim 4, Zavala discloses the first zone (228) and the second zone (230) are integrally knitted with each other (examiner notes as shown in Fig. 6).
Regarding claim 7, Zavala discloses the second zone (230) comprises an elastic material (Par. 0066, lines: 1-4, and Par. 0068, lines: 10-12).
Regarding claim 8, Zavala discloses the first zone (228) includes yarns comprising a first material (Par. 0068, lines: 14-20), and wherein the second zone (230) includes yarns comprising a second material (Par. 0068, lines: 10-12) that is different than the first material (Par. 0066, lines: 1-4).
Regarding claim 9, Zavala discloses the first zone comprises a substantially inelastic material, and wherein the second zone comprises a substantially elastic material (Par. 0066, lines: 1-4, examiner notes the first zone has more resistance to being stretched compared to the second zone).
Regarding claim 10, Zavala discloses an article of footwear (100), comprising: a knitted heel region (152, Fig. 1-3 and 5-6), comprising an elongate portion (see annotated Fig. 6 below. Examiner notes that the term "portion" is very broad and merely means "a section or quantity within a larger thing; a part of a whole" (Defn. No. 1 of "American Heritage® Dictionary of the English Language, Fifth Edition" entry via TheFreeDictionary.com)) comprising a first extension (see annotated Fig. 6 below) and a second extension (see annotated Fig. 6 below); and a second zone (230) comprising a greater elasticity than the first zone (Par. 0066, lines: 1-4 and Par. 0068, lines: 14-18, examiner notes the first zone has more resistance to being stretched compared to the second zone), wherein the first extension extends around a first side of the second zone (see annotated Fig. 6 below) and the second extension extends around a second side of the second zone (see annotated Fig. 6 below) towards an upper heel region (region 232), and wherein the second zone is separate from a collar portion (as shown in annotated Fig. 6 below).
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Fig. 6-Examiner Annotated
Regarding claim 11, Zavala discloses the first zone (228) and the second zone (230) are integrally knitted (examiner notes as shown in Fig. 6).
Regarding claim 12, Zavala discloses wherein the first zone (228) comprises a thermoplastic polymer material that is fused (Par. 0068, lines: 14-20).
Regarding claim 13, Zavala discloses wherein the knitted heel region (152) includes a yarn comprising the thermoplastic polymer material (Par. 0068, lines: 14-16).
Regarding claim 16, Zavala discloses the first zone (228) includes yarns comprising a first material (Par. 0068, lines: 14-20), and wherein the second zone (230) includes yarns comprising a second material (Par. 0068, lines: 10-12) that is different than the first material (Par. 0066, lines: 1-4).
Regarding claim 19, Zavala discloses an article of footwear (100), comprising: a knitted heel region (152), comprising: a first zone (228, Fig. 6) comprising a thermoplastic polymer material that is fused (Par. 0068, lines: 14-20) and that forms at least part of an outer-facing surface of the knitted heel region (as shown in Fig. 1-4 and 6); and a second zone (230) that has a higher degree of elasticity than the first zone (Par. 0066, lines: 1-4, examiner notes the first zone has more resistance to being stretched compared to the second zone), wherein the first zone extends (228) below the second zone (230) between the second zone and a sole structure of the article of footwear (110, examiner notes as shown in Fig. 1-3 and annotated Fig. 6 below), and wherein the second zone (230) is spaced from a collar portion of the article of footwear (as shown in annotated Fig. 6 below); and wherein the first zone (228) comprises an elongate portion (see annotated Fig. 6 below. Examiner notes that the term "portion" is very broad and merely means "a section or quantity within a larger thing; a part of a whole" (Defn. No. 1 of "American Heritage® Dictionary of the English Language, Fifth Edition" entry via TheFreeDictionary.com)) extending towards an upper heel region (region 232) and along at least one side of the second zone (as shown in annotated Fig. 6 below, where the annotated elongate portion is along at least one side of the second zone, 230).
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Fig. 6-Examiner Annotated
Regarding claim 20, Zavala discloses the knitted heel region (152) includes a yarn comprising the thermoplastic polymer material (Par. 0068, lines: 14-16).
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.
Claims 3, 5, 6, 14, 15, 17 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Zavala as applied to claims 1 (regarding claims 3, 5 and 6) and 10 (regarding claims 14, 15, 17 and 18) above, and further in view of Podhajny et al. (US PG Pub. 2014/0150292).
Regarding claim 3, Zavala discloses the invention substantially as claimed above.
Zavala does not explicitly disclose the thermoplastic polymer material comprises at least one of: polyurethane; polyamide; polyolefin, and nylon.
However, Podhajny et al. “Podhajny” teaches yet another knitted article of footwear, wherein Podhajny teaches an upper (130) forming of a knitted material (par. 0031) that makes up a first zone (area of 130 at the heel of the footwear, Fig. 1-3), wherein the first zone comprises a thermoplastic polymer material of nylon (Par. 0031, lines: 17-20).
It would have been obvious for a person of ordinary skill in the art at the time of the effective filing date of the claimed invention to use nylon as taught by Podhajny as the material for the first zone of Zavala. A person of ordinary skill would have been motivated to do so, with a reasonable expectation of success, because nylon was a well-known material for articles of footwear as taught by Podhajny, in order to enhance properties of the footwear, such as abrasion resistance (Par. 0031, lines: 17-23).
Regarding claim 5, Zavala discloses the invention substantially as claimed above.
Zavala does not disclose the knitted heel region comprises a multi-layer knit structure.
However, Podhajny et al. “Podhajny” teaches yet another knitted article of footwear, wherein Podhajny teaches a knitted heel region (area of 130 at the heel of the footwear, Fig. 1-3) comprises a multi-layer knit structure (Par. 0039, lines: 16-24, examiner notes a “double knit circular knit jacquard” is a type of multi-layer knit 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 the heel region as disclosed by Zavala, by altering the construction of the knitted component to a multi-layer knit structure as taught by Podhajny, in order to enhance the footwears durability.
Regarding claim 6, Zavala in view of Podhajny disclose the multi-layer knit structure comprises at least one of an interlock structure (Par. 0039, lines: 16-24 of Podhajny, examiner notes a “double knit circular knit jacquard” is a type of interlocking structure with the loops of yarns connecting with other loops of yarns).
Regarding claim 14, Zavala discloses the invention substantially as claimed above.
Zavala does not explicitly disclose the thermoplastic polymer material comprises at least one of: polyurethane; polyamide; polyolefin, and nylon.
However, Podhajny et al. “Podhajny” teaches yet another knitted article of footwear, wherein Podhajny teaches an upper (130) forming of a knitted material (par. 0031) that makes up a first zone (area of 130 at the heel of the footwear, Fig. 1-3), wherein the first zone comprises a thermoplastic polymer material of nylon (Par. 0031, lines: 17-20).
It would have been obvious for a person of ordinary skill in the art at the time of the effective filing date of the claimed invention to use nylon as taught by Podhajny as the material for the first zone of Zavala. A person of ordinary skill would have been motivated to do so, with a reasonable expectation of success, because nylon was a well-known material for articles of footwear as taught by Podhajny, in order to enhance properties of the footwear, such as abrasion resistance (Par. 0031, lines: 17-23).
Regarding claim 15, Zavala discloses the invention substantially as claimed above.
Zavala does not disclose the first zone comprises yarns having a first denier, and wherein the second zone comprises yarns having a second denier, such that the yarns having the second denier impart a higher degree of elasticity to the second zone compared to the first zone.
However, Podhajny et al. “Podhajny” teaches yet another knitted article of footwear, wherein Podhajny teaches a first yarn having a first denier (135, Par. 0034, lines: 15-16) and a second yarn having a second denier (134, Par. 0034, lines: 12-13), such that the yarns having the second denier impart a higher degree of elasticity compared to the yarns of the first denier (Par. 0034, lines: 12-14, examiner notes one of ordinary skill in the art would recognize yarn 134, which is an of an elastic material, has a higher degree of elasticity compared to yarn 135, which is made of polyester).
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 the first and second zone as disclosed by Zavala, by incorporating a yarn with a denier that imparts a higher degree of elasticity in the second zone compared to a yarn with a different denier in the first zone as taught by Podhajny, in order to enhance the user fit of the footwear.
Regarding claim 17, Zavala discloses the invention substantially as claimed above.
Zavala does not disclose the knitted heel region comprises a multi-layer knit structure.
However, Podhajny et al. “Podhajny” teaches yet another knitted article of footwear, wherein Podhajny teaches a knitted heel region (area of 130 at the heel of the footwear, Fig. 1-3) comprises a multi-layer knit structure (Par. 0039, lines: 16-24, examiner notes a “double knit circular knit jacquard” is a type of multi-layer knit 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 the heel region as disclosed by Zavala, by altering the construction of the knitted component to a multi-layer knit structure as taught by Podhajny, in order to enhance the footwears durability.
Regarding claim 18, Zavala in view of Podhajny disclose the multi-layer knit structure comprises at least one of an interlock structure (Par. 0039, lines: 16-24 of Podhajny, examiner notes a “double knit circular knit jacquard” is a type of interlocking structure with the loops of yarns connecting with other loops of yarns).
Conclusion
THIS ACTION IS MADE FINAL. 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.
The prior art made of record and not relied upon is considered pertinent (See PTO-892) to applicant's disclosure.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAKOTA MARIN whose telephone number is (571)272-3529. The examiner can normally be reached Mon.-Fri., 9:00AM-6:00PM.
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 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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/DAKOTA MARIN/Examiner, Art Unit 3732
/JAMESON D COLLIER/Primary Examiner, Art Unit 3732
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