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 .
Status of Claims
This Office Action is in response to the amendment filed 8/14/25. As directed by the amendment, claims 1-17 has been cancelled, and claims 18-31 have been added. Claims 18-31 are pending in this application.
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.
Claim 22 is 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 pre-AIA the applicant regards as the invention.
Claim 22 contains the trademark/trade name KEVLAR. Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. In the present case, the trademark/trade name is used to identify/describe a lightweight, high-strength synthetic para-aramid fiber and, accordingly, the identification/description is indefinite.
CLAIM INTERPRETATION
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
Use of the word “means” (or “step for”) in a claim with functional language creates a rebuttable presumption that the claim element is to be treated in accordance with 35 U.S.C. § 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that § 112(f) (pre-AIA § 112, sixth paragraph) is invoked is rebutted when the function is recited with sufficient structure, material, or acts within the claim itself to entirely perform the recited function.
Absence of the word “means” (or “step for”) in a claim creates a rebuttable presumption that the claim element is not to be treated in accordance with 35 U.S.C. § 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that § 112(f) (pre-AIA § 112, sixth paragraph) is not invoked is rebutted when the claim element recites function but fails to recite sufficiently definite structure, material or acts to perform that function.
Claim elements in this application that use the word “means” (or “step for”) are presumed to invoke § 112(f) except as otherwise indicated in an Office action. Similarly, claim elements that do not use the word “means” (or “step for”) are presumed not to invoke § 112(f) except as otherwise indicated in an Office action.
In the instant case there does not appear to be any means for language in the claims and/or language to be considered under 35 U.S.C. 112(f).
Claim Rejections - 35 USC § 103 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.
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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 o+r nonobviousness.
Claims 18-22, 25-28 and 30-31 are rejected under 35 U.S.C. 103 as being unpatentable over Chambers US 20180338568 A1 (herein after Chambers’568) in view of Auger US 20080010863 A1 (herein after Auger) and Foxen US 20200390191 A1 (herein after Foxen).
Regarding claim 18, Chambers discloses a footwear (14) comprising: an insole; an upper (46) connected to said insole (44); a sole (48, as seen in annotated Figure 6) connected to said upper (46); and a protective insert (10) inserted into said sole (48), said protective insert (10) comprising: a perforation-resistant rear element (paragraph 0039 and 0052) formed of a rigid material of a plastic material (paragraph 0031 – a carbon-fiber composite, a glass-reinforced nylon, wood, or steel are materials known for their strength and commonly used to protect against cutting and perforation), said perforation-resistant rear element (paragraph 0031) extending in a first zone (as seen in annotated Figures 4, 5, 15, 16, 17 and 18) and adapted to face a heel (22) and midfoot of a user of the footwear (20, as seen in annotated Figures 4, 5, 15, 16, 17 and 18); and a perforation-resistant front element (paragraph 0039 and 0052, as seen in annotated Figures 4, 5, 15, 16, 17 and 18) formed of a flexible material (paragraph 0039 and 0052 – thermoplastic elastomer) said perforation-resistant front element (paragraph 0039 and 0052, as seen in annotated Figures 4, 5, 15, 16, 17 and 18) extending into a second zone (as seen in annotated Figures 4, 5, 15, 16, 17 and 18) and adapted to face a forefoot of the user (18), wherein said perforation-resistant rear element (as seen in annotated Figures 4, 5, 15, 16, 17 and 18) has a first portion defining a concavity that faces an external surface of said sole and adapted to face the heel of the user (as seen in annotated Figures 4, 5, 15, 16, 17 and 18), the first portion having a wavy section with longitudinal beveled ribs (as seen in annotated Figures 4, 5, 15, 16, 17 and 18), the wavy section being in a plane orthogonal to a longitudinal axis of the footwear (as seen in annotated Figures 4).
[AltContent: arrow][AltContent: textbox (A first zone and adapted to face a heel and midfoot of a user of the footwear.)][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: textbox (An insole. 44)][AltContent: arrow][AltContent: arrow][AltContent: textbox (A sole associated with the upper. )][AltContent: textbox (A protective insert inserted into said sole.)][AltContent: arrow][AltContent: textbox (An upper. )][AltContent: arrow][AltContent: textbox (A wavy section having longitudinal beveled ribs. )][AltContent: textbox (A plane orthogonal to a longitudinal axis of the footwear. )]
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[AltContent: textbox (A second zone intended to be facing the forefoot of the user of the footwear. )][AltContent: textbox (Said rear element has a second portion. 20)]
[AltContent: connector][AltContent: ][AltContent: connector][AltContent: ][AltContent: arrow][AltContent: connector][AltContent: ][AltContent: arrow][AltContent: arrow][AltContent: textbox (A perforation resistant rear element.)][AltContent: textbox (A perforation resistant front element. )][AltContent: arrow][AltContent: arrow][AltContent: textbox (A first zone intended to be facing the rearfoot and midfoot of the user of the footwear.)][AltContent: textbox (The rear element comprises a first portion. )]
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Chambers is silent to a first portion having an end side wall laterally defining a portion of a cavity opposite to the concavity and spaced from said upper, wherein the end side wall extends from a bottom wall of the cavity so as to approach said upper and said insole, the end side wall being angled with respect to said insole, wherein said perforation-resistant rear element has a second portion formed of a single piece with the first portion, the second portion having a substantially planar shape and adapted to face the midfoot of the user.
Auger discloses a first portion (as seen in annotated Figures 1 and 2) having an end side wall (as seen in annotated Figures 1 and 2) laterally defining a portion of a cavity opposite to the concavity and spaced from said upper (as seen in annotated Figures 1 and 2), wherein the end side wall extends from a bottom wall of the cavity (as seen in annotated Figures 1 and 2) so as to approach said upper and said insole (as seen in annotated Figures 1 and 2), the end side wall being angled with respect to said insole (as seen in annotated Figures 1 and 2), wherein said perforation-resistant rear element has a second portion (as seen in annotated Figures 1 and 2) formed of a single piece with the first portion (as seen in annotated Figures 1, 2, 11, 12, 13 and 18), the second portion having a substantially planar shape and adapted to face the midfoot of the user (as seen in annotated Figures 11and 13).
[AltContent: arrow][AltContent: textbox (Toe cap.)][AltContent: arrow][AltContent: arrow][AltContent: textbox (A concavity facing an external surface of said sole and intended to face the heel of the user.)]
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[AltContent: textbox (A curved joining wall.)][AltContent: textbox (Side wall.)]
[AltContent: arrow][AltContent: textbox (Bottom wall)]
[AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow]
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[AltContent: textbox (The second portion having a substantially planar shape and adapted to face the midfoot of the user.)]
Chambers and Auger are analogous art to the claimed invention as it relates to footwear with reinforced soles.
It would have been obvious to one having ordinary skill in the art before the effective filing date
of the invention to have modified the footwear of Chambers, by constructing the protective insert to include a first portion having an end side wall laterally defining a portion of a cavity opposite to the concavity and spaced from said upper, wherein the end side wall extends from a bottom wall of the cavity so as to approach said upper and said insole, the end side wall being angled with respect to said insole, wherein said perforation-resistant rear element has a second portion formed of a single piece with the first portion, the second portion having a substantially planar shape and adapted to face the midfoot of the user, as taught by Auger in order to form an insert shaped to conform to the foot and heel of the footwear. The modification of the protective insert would be a simple modification to obtain predictable results, creating a sole structure that has some flexibility and is formed to better conform to the wearers foot and be more comfortable to wear.
However, Chambers and Auger are silent to the flexible material is a textile laminate.
Foxen discloses the flexible material is a textile laminate (paragraph 0041).
Foxen is analogous art to the claimed invention in that it provides an upper support portion made from a flexible material.
It would have been obvious to one having ordinary skill in the art before the effective filing date
of the invention to have modified the perforation resistant insert of Chambers and Auger by constructing the flexible material being a textile laminate as taught by Foxen. The modification would be a simple modification to obtain predictable results, footwear that was flexible and comfortable to wear that still provides the necessary protection.
Regarding claim 19, the footwear of the combined references discloses wherein the wavy section (as seen in annotated Figures 3 to 5 of Chambers) defines at least one internal crest (as seen in annotated Figures 3 to 5 of Chambers) internal of the cavity and at least two external crests external of the cavity (as seen in annotated Figures 3 to 5 of Chambers).
[AltContent: textbox (Crest)][AltContent: textbox (Crest)][AltContent: textbox (Concavity)]
[AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: textbox (Wavy type section.)][AltContent: arrow]
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[AltContent: textbox (Cavity)]
Regarding claim 20, the footwear of the combined references discloses wherein the first portion is internal of said sole (48, as seen in annotated Figures 4, 5, 6, 15, 16, 17 and 18 of Chambers) so as to be spaced from said upper and said insole (44, as seen in annotated Figures 4, 5, 6, 15, 16, 17 and 18 of Chambers), the second portion being adjacent said insole (44, as seen in annotated Figures 4, 5, 6, 15, 16, 17 and 18 of Chambers), the perforation-resistant front element being in contact with said insole (as seen in annotated Figures 4, 5, 6, 15, 16, 17 and 18 of Chambers).
[AltContent: textbox (The first portion is internal of said sole.)][AltContent: arrow]
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Regarding claim 21, the footwear of the combined references discloses wherein the first portion (22 of Chambers) being on an edge facing said insole (44 of Chambers) and having at least one spacer element that spaces the first portion from said insole (as seen in annotated Figure 6 of Chambers).
[AltContent: arrow][AltContent: arrow][AltContent: textbox (At least one spacer element of the first portion from the insole.)][AltContent: textbox (At least said first portion is provided on an edge facing the insole.)]
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Regarding claim 22, while the modified footwear of the combined references discloses wherein said perforation-resistant rear element is of a material selected from the group consisting of thermoplastic material (paragraphs 0039 and 0052 of Chambers), a thermosetting material, a thermoplastic material or thermosetting material loaded with at least one of carbon fibers (paragraphs 0039 and 0052 of Chambers), glass fibers, KEVLAR (TM), wood and polyamide loaded with glass fibers the combined references do not teach the material for the rear element being loaded with another material in a proportion by weight between 20 % and 50 %. It would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to have constructed the rear element being loaded with another material in a proportion by weight between 20 % and 50 %, since it has been held that where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges that would be discovered through routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, would be deemed through routine experimentation and as such is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions. See also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). Having the material of the rear element being loaded with another material in a proportion by weight between 20 % and 50 % would provide strength to the insert to better protect the footwear from perforation.
Regarding claim 25, the footwear of the combined references discloses wherein said sole (48 of Chambers) is injection molded (paragraphs 0123, 0124 and 0125 of Auger) on said upper with molding material (as seen in annotated Figures 12 and 18 of Auger), the molding material forming said sole (48, of Chambers) and disposed within the cavity of said protective insert concavity (10, paragraphs 0039 and 0052, as seen in annotated Figure 3 of Chambers).
.
Regarding claim 26, the footwear of the combined references discloses wherein the first portion has the bottom wall (as seen in annotated Figures 11 and 13 of Auger) and the end side wall connected to each other so as to define the concavity (as seen in annotated Figures 11 and 13 of Auger), the end side wall joining the bottom wall with a curved joining wall (as seen in annotated Figures 11 and 13 of Auger).
[AltContent: textbox (A curved joining wall.)][AltContent: textbox (Side wall.)]
[AltContent: arrow][AltContent: textbox (Bottom wall)]
[AltContent: arrow][AltContent: arrow][AltContent: arrow]
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Regarding claim 27, the footwear of the combined references discloses wherein the protective insert is positioned at a height evaluated with respect to the insole, the combined references do not teach the height being between 35% and 67% of a total thickness of said sole. It would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to have constructed the height being between 35% and 67% of a total thickness of said sole, since it has been held that where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges that would be discovered through routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, would be deemed through routine experimentation and as such is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions. See also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). Having the positioning of the protective insert with a height being between 35% and 67% of a total thickness of said sole would ensure the insert is centered in the sole to provide both comfort and protection.
Regarding claim 28, the footwear of the combined references discloses wherein said protective insert is adapted to stabilize the footwear (Abstract of Auger).
Regarding claim 30, the footwear of the combined references discloses wherein the end side wall has a slope with respect to a horizontal plane (as seen in annotated Figure 1 of Auger) corresponding to the bottom wall (as seen in annotated Figure 1 of Auger), the slope having an angle with a minimum value at a junction of the end side wall and the bottom wall (as seen in annotated Figure 1 of Auger) and hereto maximum value at a free edge of the end side wall (as seen in annotated Figure 1 of Auger).
Regarding claim 31, while the modified footwear of the combined references discloses the slope of the side wall varies (as seen in annotated Figure 1 of Auger), the combined references do not teach the angle of the slope is between 15 degrees and 85 degrees. It would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to have constructed the side wall varying between a value of 15° and a value of 85 degrees preferably, since it has been held that where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges that would be discovered through routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, would be deemed through routine experimentation and as such is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions. See also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). Having the angle of the slope is between 15 degrees and 85 degrees would shape the sole to the contours of the foot.
Claims 23 and 24, are rejected under 35 U.S.C. 103(a) as being unpatentable Chambers US 20180338568 A1 (herein after Chambers’568) in view of Auger US 20080010863 A1 (herein after Auger) and Foxen US 20200390191 A1 (herein after Foxen) as applied to claim 1 above, and further in view of Charles US 6151803 A (herein after Charles).
Regarding claim 23, the footwear of the combined references discloses all the limitations of claim 23 except they do not disclose wherein said perforation-resistant rear element and said perforation-resistant front element are glued to each other.
Charles teaches wherein said perforation-resistant rear element (10F) and said perforation-resistant front element (10A, 10B, 10C) are glued to each other (Col 3, lines 9-15 and Col 2, lines 57-62).
[AltContent: arrow][AltContent: arrow][AltContent: textbox (Stop wall)]
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Charles is analogous art to the claimed invention in that it relates to footwear having a protective insert.
It would have been obvious to one having ordinary skill in the art before the effective filing date
of the invention to have modified the configuration of the insert of Chambers, Auger and Foxen by constructing the portions being adhered together as taught by Charles, in order to prevent them from moving during wear. The modification would be a simple modification to obtain predictable results, ensuring the portions stay in place and don’t create friction along the joining line.
Regarding claim 24, the footwear of the combined references discloses wherein said perforation-resistant rear element (10F of Charles) has a stop wall for an edge of said perforation-resistant front element (as seen in annotated Figure 2C of Charles) and a support wall at a portion of said perforation-resistant front element (as seen in annotated Figure 2C of Charles).
Claim 29 is rejected under 35 U.S.C. 103 as being unpatentable over Chambers US 20180338568 A1 (herein after Chambers’568) in view of Auger US 20080010863 A1 (herein after Auger) and Foxen US 20200390191 A1 (herein after Foxen) as applied to claim 1 and further in view of Zhang CN 106805353 A (herein after Zhang).
Regarding claim 29, the footwear of the combined references discloses all the limitations of claim 29 except they do not disclose an impact and compression protective toe cap positioned at a frontal area of the footwear; a cut-resistant protective layer interposed between a lining and said upper; a rear reinforcement connected to said upper; and a plurality of lateral reinforcements connected to said upper and adapted to at least partially surround an ankle and an instep of the user.
Zhang discloses the modified footwear of the combined references discloses further comprising:
an impact and compression protective toe cap (8) positioned at a frontal area of the footwear (as seen in annotated Figure 1 below); a cut-resistant protective layer (as quoted below) interposed between a lining and said upper (3); a rear reinforcement (20) connected to said upper (as seen in annotated Figure 1 below); and a plurality of lateral reinforcements connected to said upper (as seen in annotated Figure 1 below) and adapted to at least partially surround an ankle and an instep of the user (as seen in annotated Figure 1 below).
[AltContent: arrow][AltContent: textbox (Lateral reinforcements)][AltContent: arrow][AltContent: textbox (Toe cap)]
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“…As the solution further invention of the footwear front upper is made of plastic steel material…;
…As the solution further invention of the anti-collision toe cap is made of super-fibre leather…”.
Zhang is analogous art to the claimed invention in that it relates to protective footwear.
It would have been obvious to one having ordinary skill in the art before the effective filing date
of the invention to have modified the footwear of Chamber, Auger and Foster, by constructing the footwear having a protective upper, a protective toe cap and a protective heel region as taught by Zhang in order to provide protection for every part of the foot. The modification would be a simple modification to obtain predictable results, protective footwear that not only protects the bottom of the shoe, but the sides, heel and upper, providing better protection to the wearer.
Arguments
Applicants arguments have been fully considered. In light of applicants cancelled claims, and submitted new claim set, the Applicants arguments do not apply to the combinations of references used to teach the limitations of the amended claims in the current rejection and/or the manner in which prior art has been applied in the current rejection. In view of Applicant's amendments, the search has been updated, and a rejection on the amended claims is applied above.
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 extension fee 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 date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CATHERINE M FERREIRA whose telephone number is (571)270-5916, fax number (571) 270-6916. The examiner can normally be reached on Monday - Thursday 9:00 am- 5:00 pm.
If attempts to reach the examiner by telephone are unsuccessful, please contact the examiner’s supervisor, ALISSA J. TOMPKINS, at (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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/Catherine M. Ferreira/
Examiner, Art Unit 3732