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 .
Response to Amendment
The Office has carefully considered Applicant’s amendments and accompanying remarks dated 12/10/2025.
Applicant’s amendments to the claims have been entered and made of record. Applicant amended claims 1, 14, 17 and 30.
The status of the claims at this time are as follows Claims 1, 14, 17 and 30 are amended; Claim 2, 4, 11, 12, 15, 21-27 are cancelled; thereby leaving claims 1, 3, 5-10, 13, 14, 16-20 and 28-32 are under review in this office action.
Response to Arguments
Applicant's arguments filed 12/10/25 have been fully considered but they are not persuasive.
Applicant’s first traversal is that the Office has not shown that Hollis teaches a lofted nonwoven fibrous material and that it is a single layer.
The Office contends that the term “loft or lofted” is a relative term. Nonwovens are inherently lofty when compared to other textiles like wovens or knits, just by their method of production. Their manufacturing process is designed to create a random, overlapping fiber structure rather than a tightly packed woven or knitted textile. There is no universal threshold for the measure of loft. Factors that influence textile loft are the production method, web formation, bonding and fiber type. Carded and lapped nonwovens can achieve loft (volume or thickness for a given weight) because their manufacturing process is designed to create a random, overlapping fiber structure rather than a tightly packed, parallel-laid mat. Hollis et al. at ¶ 0025, discloses that a plurality of nonwoven formation processes, in addition to meltblowing, spunbonding, air-laying, conforming, hydroentangling, and bonded carded web processes, may be used. All of these processes create loft.
It should also be noted that Applicant has never defines the term “loft” or provides any alternative meaning to the term “lofted nonwoven.” Applicant does at ¶ 0074 of their own specification teach that “The carded web may be rotary lapped, cross-lapped or vertically lapped, to form a voluminous or lofted nonwoven material. The carded web may be vertically lapped according to processes such as “Struto” or “V-Lap”, for example.” Both Applicant and Hollis et al. create the web in the same manner, therefore they both are lofted. [See Hollis et al., ¶ 0025].
Hollis et al. teaches carded and lapped nonwovens in both a single and multilayered configurations and thus meets the want of a single layered lofted nonwoven. See Figure 1A and ¶ 0011, 0029. This traversal is not found to be persuasive.
Applicant’s second traversal is that the Office Action has not shown that the pad material is adapted for use within an article of footwear.
The Office contends that Hollis et al. do teach that the material is used in footwear. The abstract of Hollis et al. begins with “Footwear with vertically lapped nonwoven layers in upper and sole structures for enhanced breathability and moisture wicking is disclosed.” The preamble of every claim of Hollis et al. begins with “The footwear;” Other pertinent paragraphs where the material is shown to be used in footwear are:
At ¶ 0002, the instant reference teaches that the disclosure generally pertains to vertically lapped (perpendicular-laid) nonwoven applications in footwear, and more specifically the use of nonwoven layers in an upper and/or sole of footwear and/or portions thereof.
At ¶ 0006, the instant reference teaches that the vertically lapped nonwoven us used as a replacement of a non-porous synthetic upper and/or a sole in footwear to enhance adequate air exchange and breathability and to provide a comfortable housing for prolonged wear for a plurality of use conditions. In a particular preferred embodiment, the footwear disclosed herein provides vertically lapped nonwoven layers in the upper and/or the sole of the footwear. A plurality of types and structures of footwear manufactured with vertically nonwoven layers, including the footwear with closed heel and/or closed front (e.g., athletic footwear, outdoor-work footwear) and with open heel and/or open front (e.g., sandals, slippers, flip-flops), are described herein.
At ¶ 0020, the instant reference specifically defines what footwear is and teaches- As used herein, by “footwear”, it is meant one or a plurality of apparels or garments that are used for protection of the feet against adversities of the environment, usually regarding ground textures and temperature. Footwear described herein primarily serves the purpose to ease the locomotion and prevent injuries but may also be used for fashion and adornment. Some exemplary types of footwear include, but are not limited to, boots, athletic shoes, dance flats, diabetic shoes, mules, high-tops, skate shoes, school shoes, sneakers, toe shoes, sandals, flip-flops, closed slippers, open slippers, clogs, surgical shoes, etc. The present nonwoven layers are highly suited as a replacement of synthetic fibers, materials (e.g. polyurethane) or coating of synthetic fibers on leathers or on fabrics in footwear, in which the one side of the layer comes in direct contact with the feet of the wearer; the feet being with or without socks. As noted above, all or portions of the nonwoven layers disclosed in the present invention are vertically lapped.
Additionally, ¶¶ 0007, 0008, 0009, 0014-0024, 0032-0034, 0037, 0038 and 0040-0042.
As such, this traversal is also not found to be convincing as Hollis et al., clearly anticipated the use of the material in footwear.
Even though the Office has clearly set forth that the Hollis et al., reference anticipates the use in footwear, regarding the term “adapted for use in footwear,” it is the position of the Office that the scope of the claim is not limited by claim language that suggests or makes optional but does not require steps to be performed, or by claim language that does not limit a claim to a particular structure. Additionally, it should be noted that it has been held that the recitation that an element is “adapted to” perform a function is not a positive limitation but only requires the ability to so perform.
e. Applicant’s third traversal is that there is not showing in Hollis et al. of contact portions secured to the lofted nonwoven fibrous material.
f. The Office contends that Hollis et al., does in fact teach contact portions secured to the lofted nonwoven fibrous material. As this is an amendment and not rejected before the Office refers to Applicant’s specification at published version at ¶ 0012 for what this amendment entails. At ¶ 0012, it states that the pad material may include one or more contact portion between a wearer and the fibrous material. The contact portion may be adapted to contact a wearer directly or indirectly (e.g., via sock or hosiery). The pad material may include a contact portion located between an outer portion of the article of footwear and the fibrous material. One or more contact portion may be a wicking material. One or more contact portions may provide a soft or comfortable surface for the wearer. One or more contact portions may provide a surface that prevents or reduces slip of the foot within the article of footwear while walking. One or more contact portions may provide insulation and/or heat. One or more contact portions may provide cooling. It is also contemplated that the pad material may be free of a separate contact portion. The wearer may contact the fibrous portion and/or the fibrous portion may be secured or directly contact another part of the article of footwear, such as a portion of the sole or an outer material of the article of footwear.
As such, any additional layer attached to a single lofted nonwoven would meet this limitation.
Now reverting to Hollis et al., At ¶ 0032, they disclose that an outer layer of the upper may further include textile materials, for example, a mesh cloth that provides enhanced air-permeability and moisture-wicking properties and furthering on the point or in combination with the teachings of ¶ 0032, at ¶ 0030, they teach that an additional vertically lapped layer may be secured, attached or bonded or adhered by a number of methods to the vertically lapped nonwoven.
Thus, an additional layer, whether it be an additional vertically lapped nonwoven or a wicking layer, both are additional layers that are secured to a single lofted nonwoven layer. This traversal is not found to be persuasive either.
g. Applicant’s next traversals spanning pages 6-8 are inclined towards Hollis et al., teaching a plurality of lofted nonwoven layers and not a single layer and cites different paragraphs citing multilayered embodiments and believes that the Office has misunderstood the teachings of Hollis et al.
h. The Office contends that Hollis et al. in fact teach both single layered and multilayer nonwovens. Hollis et al. teaches carded and lapped nonwovens in both a single and multilayered configurations and thus meets the want of a single layered lofted nonwoven. See Figure 1A and ¶ 0011, 0029. At ¶ 0029, most specifically, the instant patent states that “In some embodiments, the vertically lapped nonwoven layers may be arranged as a single layer or multiple layers.”
While is it true, that their preferred embodiments are mostly towards dual layered vertically lapped nonwovens, the teaching of a single use is discussed at ¶ 0029.
The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain. A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill the art, including nonpreferred embodiments.
It should be noted that Applicant’s final structure is a multilayered composite where only the lofted nonwoven layer is a single layer. Applicants also has additional layers much like Hollis et al., does, yet Hollis et al. teaches that both a single or dual layered lofted nonwoven may be used.
As such, the traversals that Hollis et al. do not teach a single layered lofted nonwoven is not found to be persuasive.
Applicant’s next traversals on claims 5 and 6, are not commensurate in scope with the claims, as Claim 5 is about the being adapted for use as an insole of an article of footwear and Claim 6 about the pad material is adapted for use with an upper of an article of footwear. As shown above under d. above Hollis et al., teach the use of the nonwoven in footwear and different parts of the footwear as the insole and upper.
As such, these arguments are not found to be convincing.
i. Applicant’s next traversal is on Claim 7-10, where Applicant’s traversal is that Hollis et al., do not teach a single layer lofted nonwoven fibrous material which has air flow channels. Hollis et al. teaches carded and lapped nonwovens in both a single and multilayered configurations and thus meets the want of a single layered lofted nonwoven. See Figure 1A and ¶ 0011, 0029. At ¶ 0029, most specifically, the instant patent states that “In some embodiments, the vertically lapped nonwoven layers may be arranged as a single layer or multiple layers.”
Applicant is directed to Figure 1 C ref 12 [¶ 0031-0032] which shows channels that allows air to pass freely and the gaps may be larger, more defined, and/or regular by using a molding process, followed by space-permitting adhesion methods (e.g., stitching).
Furthermore, it should be noted that 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 pad material to have an orientation that is parallel; or the wearer or in any direction for that matter, 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, angle, orientation, 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). Also, Applicant has not shown an unexpected results with having the orientation of the pad in any given direction. As such, this argument is not found to be convincing.
Regarding the discussion on amended Claim 14, where Applicant traverses Hollis et al. do not teach that the contact portion is not a carded or lapped material. Applicant is directed to ¶ 0025, Hollis et al. teach additional ways to form the nonwoven in addition to carding or lapping such as meltblowing, spunbonding, air-laying, conforming, hydroentangling, and bonded carded web processes, may be used. This argument is not found to be convincing.
Regarding the discussion on Claim 16, where Applicant traverses that Hollis et al., do not teach a contact portion is located between an outer portion of the article of the footwear and the fibrous material. Applicant is directed to ¶ 0020, where the instant reference teaches that the preferred embodiments of the present disclosure are directed toward multilayers of vertically lapped nonwovens in footwear. These embodiments benefit from an absorbency, breathability, as well as a cushioning functionality which can be achieved with vertically lapped nonwovens incorporated into various types of footwear. As used herein, by “footwear”, it is meant one or a plurality of apparels or garments that are used for protection of the feet against adversities of the environment, usually regarding ground textures and temperature. Footwear described herein primarily serves the purpose to ease the locomotion and prevent injuries but may also be used for fashion and adornment. Some exemplary types of footwear include, but are not limited to, boots, athletic shoes, dance flats, diabetic shoes, mules, high-tops, skate shoes, school shoes, sneakers, toe shoes, sandals, flip-flops, closed slippers, open slippers, clogs, surgical shoes, etc. The present nonwoven layers are highly suited as a replacement of synthetic fibers, materials (e.g. polyurethane) or coating of synthetic fibers on leathers or on fabrics in footwear, in which the one side of the layer comes in direct contact with the feet of the wearer; the feet being with or without socks. As noted above, all or portions of the nonwoven layers disclosed in the present invention are vertically lapped.
Regarding the discussion on Claim 17, Applicant traverses again that a single layer is not taught by Hollis et al. and is used within an article of footwear
There is no teaching of a facing layer within Hollis, especially one that is not carded or lapped material. Applicant is directed to ¶ 0020, where the instant reference teaches that the preferred embodiments of the present disclosure are directed toward multilayers of vertically lapped nonwovens in footwear. These embodiments benefit from an absorbency, breathability, as well as a cushioning functionality which can be achieved with vertically lapped nonwovens incorporated into various types of footwear. As used herein, by “footwear”, it is meant one or a plurality of apparels or garments that are used for protection of the feet against adversities of the environment, usually regarding ground textures and temperature. Footwear described herein primarily serves the purpose to ease the locomotion and prevent injuries but may also be used for fashion and adornment. Some exemplary types of footwear include, but are not limited to, boots, athletic shoes, dance flats, diabetic shoes, mules, high-tops, skate shoes, school shoes, sneakers, toe shoes, sandals, flip-flops, closed slippers, open slippers, clogs, surgical shoes, etc. The present nonwoven layers are highly suited as a replacement of synthetic fibers, materials (e.g. polyurethane) or coating of synthetic fibers on leathers or on fabrics in footwear, in which the one side of the layer comes in direct contact with the feet of the wearer; the feet being with or without socks. As noted above, all or portions of the nonwoven layers disclosed in the present invention are vertically lapped.
As stated above, Hollis et al. in fact teach both single layered and multilayer nonwovens. Hollis et al. teaches carded and lapped nonwovens in both a single and multilayered configurations and thus meets the want of a single layered lofted nonwoven. See Figure 1A and ¶ 0011, 0029. At ¶ 0029, most specifically, the instant patent states that “In some embodiments, the vertically lapped nonwoven layers may be arranged as a single layer or multiple layers.” And Hollis et al. do not teach that the contact portion is not a carded or lapped material. Applicant is directed to ¶ 0025, Hollis et al. teach additional ways to form the nonwoven in addition to carding or lapping such as meltblowing, spunbonding, air-laying, conforming, hydroentangling, and bonded carded web processes, may be used. This argument is not found to be convincing.
Additionally, Applicant is directed to ¶ 0031, where the outer layer of the upper may further include textile materials, for example, a mesh cloth that provides enhanced air-permeability and moisture-wicking properties. Hollis et al. doesn’t state that this layer is carded or lapped.
Regarding the discussion for claim 18, where Applicant contends that the amended claim 17 states that the facing layer is not a carded and lapped material. Thus, there is no showing Hollis teaches a facing layer that is a permeable wicking material that is not a carded and lapped material. Applicant is directed to ¶ 0031, where the outer layer of the upper may further include textile materials, for example, a mesh cloth that provides enhanced air-permeability and moisture-wicking properties. Hollis et al. doesn’t state that this layer is carded or lapped.
Regarding the discussion for claim 20, Applicant states that they are unable to locate the figure showing the orientation of fibers or loops in these figures. This is clearly shown at figure 1C
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Regarding the discussion for claim 28, where Applicant contends that there is no showing od a single vertically lapped layer. Hollis et al. teaches carded and lapped nonwovens in both a single and multilayered configurations and thus meets the want of a single layered lofted nonwoven. See Figure 1A and ¶ 0011, 0029. At ¶ 0029, most specifically, the instant patent states that “In some embodiments, the vertically lapped nonwoven layers may be arranged as a single layer or multiple layers.”
Regarding the discussion for claim 29, where Applicant contends that the Office Action directs Applicant to paragraph [0005] of Hollis. While this paragraph identifies "improved breathability" as a need in the industry, there is no showing that Hollis teaches that each layer of the article is breathable. Hollis’s invention is about moisture wicking through the layers whether it be one or multilayered. There are no layer’s present that are not porous. The structure of a nonwoven alone would be breathable just by the way it is manufactured.
Regarding the discussion for claims 30-32, the dual layered vertically lapped structure meets the structure sought in these claims. Applicant is directed to FIG. 1B and 1C is a cross-sectional side view of an exemplary dual layer of vertically lapped nonwovens after adhesion and its description [0030-0031]. The vertically lapped nonwovens are in a dual layer system 13, as shown in FIGS. 1B and 1C. In making of dual layer nonwovens, one vertically lapped nonwoven 10 is adhered to or otherwise connected to an underlying vertically lapped non-woven 11. The dual layer may be bonded, attached or adhered by a plurality of methods, e.g., chemical bonding (e.g., saturation, spraying screen printing, and foam), mechanical bonding (e.g., needle punching, hydro-entangling) and thermal bonding (e.g., air heating and calendaring), etc. In the most preferred embodiment, the top layer 10 is made of hydrophilic materials to improve wicking and absorption of moisture whereas the bottom layer 11 is made of hydrophobic materials for fast drying and moisture removal.
Hollis et al. teach additional ways to form the nonwoven in addition to carding or lapping such as meltblowing, spunbonding, air-laying, conforming, hydroentangling, and bonded carded web processes, may be used.
Applicant’s arguments were not found to be convincing.
Claim Rejections - 35 USC § 102
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 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.
Claim(s) 1, 3, 5-10, 14, 16-20, 28, 29 and 30-32 is/are rejected under 35 U.S.C. 102 (a 1) as being anticipated by USPUB 20210282500A issued to Hollis et al.
Regarding modified Claim 1, where Applicant now seeks an article comprising:
a pad material for providing cushioning, guiding absorption and/or evaporation of moisture, or both, comprising:
a lofted nonwoven fibrous material; and
one or more contact portions secured to the lofted nonwoven fibrous material;
wherein the lofted nonwoven fibrous material is a carded and lapped fibrous material or an air laid material; and wherein ; Applicant is directed to the entire reference of Hollis et al. Hollis et al a footwear/article [¶¶ 0002-0009, 0024, 0025, 0029] comprising: a pad material for providing cushioning, guiding absorption and/or evaporation of moisture, or both, comprising: a single layered lofted nonwoven fibrous material [¶¶ 0025 and 0029]; and one or more contact portions; wherein the lofted nonwoven fibrous material is a carded [¶ 0025] and lapped [¶¶0025-0037] fibrous material or an air laid material; wherein the pad material is adapted for use within an article of footwear [¶0020].
Hollis et al. in fact teach both single layered and multilayer nonwovens. Hollis et al. teaches carded and lapped nonwovens in both a single and multilayered configurations and thus meets the want of a single layered lofted nonwoven. See Figure 1A and ¶ 0011, 0029. At ¶ 0029, most specifically, the instant patent states that “In some embodiments, the vertically lapped nonwoven layers may be arranged as a single layer or multiple layers.”
Regarding the amendment where Applicant now seeks that one or more contact portions secured to the lofted nonwoven fibrous material; Hollis et al. teaches contact portions secured to the lofted nonwoven fibrous material. Applicant’s specification at published version at ¶ 0012 states that the pad material may include one or more contact portion between a wearer and the fibrous material. The contact portion may be adapted to contact a wearer directly or indirectly (e.g., via sock or hosiery). The pad material may include a contact portion located between an outer portion of the article of footwear and the fibrous material. One or more contact portion may be a wicking material. One or more contact portions may provide a soft or comfortable surface for the wearer. One or more contact portions may provide a surface that prevents or reduces slip of the foot within the article of footwear while walking. One or more contact portions may provide insulation and/or heat. One or more contact portions may provide cooling. It is also contemplated that the pad material may be free of a separate contact portion. The wearer may contact the fibrous portion and/or the fibrous portion may be secured or directly contact another part of the article of footwear, such as a portion of the sole or an outer material of the article of footwear.
As such, any additional layer attached to a single lofted nonwoven would meet this limitation.
Now reverting to Hollis et al., At ¶ 0032, they disclose that an outer layer of the upper may further include textile materials, for example, a mesh cloth that provides enhanced air-permeability and moisture-wicking properties and furthering on the point or in combination with the teachings of ¶ 0032, at ¶ 0030, they teach that an additional vertically lapped layer may be secured, attached or bonded or adhered by a number of methods to the vertically lapped nonwoven. These layers maybe be a plurality of nonwovens formed by alternative processes, such as meltblowing, spunbonding, air-laying, conforming, hydroentangling, and bonded carded web processes [¶ 0025].
Thus, an additional layer, whether it be an additional vertically lapped nonwoven or a wicking layer, both are additional layers that are secured to a single lofted nonwoven layer.
Regarding Claim 3, where Applicant seeks that the article of claim 1, wherein the carded and lapped fibrous material is a vertically lapped or rotary lapped material; Applicant is directed to ¶¶ 0025-0037, where they teach the material is vertically lapped.
Regarding Claim 5, where Applicant seeks that the article of claim 1, wherein the pad material is adapted for use as an insole of an article of footwear; Applicant is directed to the abstract of Hollis et al. which begins with “Footwear with vertically lapped nonwoven layers in upper and sole structures for enhanced breathability and moisture wicking is disclosed.” Other pertinent paragraphs where the material is shown to be used in footwear are:
At ¶ 0002, the instant reference teaches that the disclosure generally pertains to vertically lapped (perpendicular-laid) nonwoven applications in footwear, and more specifically the use of nonwoven layers in an upper and/or sole of footwear and/or portions thereof.
At ¶ 0006, the instant reference teaches that the vertically lapped nonwoven us used as a replacement of a non-porous synthetic upper and/or a sole in footwear to enhance adequate air exchange and breathability and to provide a comfortable housing for prolonged wear for a plurality of use conditions. In a particular preferred embodiment, the footwear disclosed herein provides vertically lapped nonwoven layers in the upper and/or the sole of the footwear. A plurality of types and structures of footwear manufactured with vertically nonwoven layers, including the footwear with closed heel and/or closed front (e.g., athletic footwear, outdoor-work footwear) and with open heel and/or open front (e.g., sandals, slippers, flip-flops), are described herein.
At ¶ 0020, the instant reference specifically defines what footwear is and teaches- As used herein, by “footwear”, it is meant one or a plurality of apparels or garments that are used for protection of the feet against adversities of the environment, usually regarding ground textures and temperature. Footwear described herein primarily serves the purpose to ease the locomotion and prevent injuries but may also be used for fashion and adornment. Some exemplary types of footwear include, but are not limited to, boots, athletic shoes, dance flats, diabetic shoes, mules, high-tops, skate shoes, school shoes, sneakers, toe shoes, sandals, flip-flops, closed slippers, open slippers, clogs, surgical shoes, etc. The present nonwoven layers are highly suited as a replacement of synthetic fibers, materials (e.g. polyurethane) or coating of synthetic fibers on leathers or on fabrics in footwear, in which the one side of the layer comes in direct contact with the feet of the wearer; the feet being with or without socks. As noted above, all or portions of the nonwoven layers disclosed in the present invention are vertically lapped.
Additionally, paragraphs 0007, 0008, 0009, 0014-0024, 0032-0034, 0037, 0038 and 0040-0042.
Thus, Hollis et al. clearly anticipates the use of the material in different part of footwear.
Even though the Office has clearly set forth that the Hollis et al., reference anticipates the use in footwear, regarding the term “adapted for use in footwear,” it is the position of the Office that the scope of the claim is not limited by claim language that suggests or makes optional but does not require steps to be performed, or by claim language that does not limit a claim to a particular structure. Additionally, it should be noted that it has been held that the recitation that an element is “adapted to” perform a function is not a positive limitation but only requires the ability to so perform.
Regarding Claim 6, where Applicant seeks that the article of claim 1, wherein the pad material is adapted for use with an upper of an article of footwear; Applicant is directed to the abstract of Hollis et al. which begins with “Footwear with vertically lapped nonwoven layers in upper and sole structures for enhanced breathability and moisture wicking is disclosed.” Other pertinent paragraphs where the material is shown to be used in footwear are:
At ¶ 0002, the instant reference teaches that the disclosure generally pertains to vertically lapped (perpendicular-laid) nonwoven applications in footwear, and more specifically the use of nonwoven layers in an upper and/or sole of footwear and/or portions thereof.
At ¶ 0006, the instant reference teaches that the vertically lapped nonwoven us used as a replacement of a non-porous synthetic upper and/or a sole in footwear to enhance adequate air exchange and breathability and to provide a comfortable housing for prolonged wear for a plurality of use conditions. In a particular preferred embodiment, the footwear disclosed herein provides vertically lapped nonwoven layers in the upper and/or the sole of the footwear. A plurality of types and structures of footwear manufactured with vertically nonwoven layers, including the footwear with closed heel and/or closed front (e.g., athletic footwear, outdoor-work footwear) and with open heel and/or open front (e.g., sandals, slippers, flip-flops), are described herein.
At ¶ 0020, the instant reference specifically defines what footwear is and teaches- As used herein, by “footwear”, it is meant one or a plurality of apparels or garments that are used for protection of the feet against adversities of the environment, usually regarding ground textures and temperature. Footwear described herein primarily serves the purpose to ease the locomotion and prevent injuries but may also be used for fashion and adornment. Some exemplary types of footwear include, but are not limited to, boots, athletic shoes, dance flats, diabetic shoes, mules, high-tops, skate shoes, school shoes, sneakers, toe shoes, sandals, flip-flops, closed slippers, open slippers, clogs, surgical shoes, etc. The present nonwoven layers are highly suited as a replacement of synthetic fibers, materials (e.g. polyurethane) or coating of synthetic fibers on leathers or on fabrics in footwear, in which the one side of the layer comes in direct contact with the feet of the wearer; the feet being with or without socks. As noted above, all or portions of the nonwoven layers disclosed in the present invention are vertically lapped.
Additionally, paragraphs 0007, 0008, 0009, 0014-0024, 0032-0034, 0037, 0038 and 0040-0042.
Thus, Hollis et al. clearly anticipates the use of the material in different part of footwear.
Even though the Office has clearly set forth that the Hollis et al., reference anticipates the use in footwear, regarding the term “adapted for use in footwear,” it is the position of the Office that the scope of the claim is not limited by claim language that suggests or makes optional but does not require steps to be performed, or by claim language that does not limit a claim to a particular structure. Additionally, it should be noted that it has been held that the recitation that an element is “adapted to” perform a function is not a positive limitation but only requires the ability to so perform.
Regarding modified Claim 14, where Applicant now seeks that the article of any of claim 1, wherein at least one of the contact portion is located between a wearer and the fibrous material and is not a carded and lapped material; Applicant is directed to ¶ 0020, where the instant reference teaches that footwear, in which the one side of the layer comes in direct contact with the feet of the wearer. Additionally, the instant reference has different embodiments of different types of footwear and different parts within the footwear itself, such as the insole, midsole or outsole. Any or all of these can be made from a single layer or multiple layers of the vertically lapped nonwoven. Thus, depending on which part of the footwear is made there would be a contact portion with the wearer.
At ¶ 0025, Hollis et al. teach additional ways to form the nonwoven in addition to carding or lapping such as meltblowing, spunbonding, air-laying, conforming, hydroentangling, and bonded carded web processes, may be used.
Regarding Claim 16, where Applicant seeks that the article of claim 1, wherein at least one of the contact portions is located between an outer portion of the article of footwear and the fibrous material; the instant reference has different embodiments of different types of footwear and different parts within the footwear itself, such as the insole, midsole or outsole. Any or all of these can be made from a single layer or multiple layers of the vertically lapped nonwoven. Thus, depending on which part of the footwear is made there would be a contact portion with the wearer. Further, Applicant is directed to ¶ 0020, where the instant reference teaches that the preferred embodiments of the present disclosure are directed toward multilayers of vertically lapped nonwovens in footwear. These embodiments benefit from an absorbency, breathability, as well as a cushioning functionality which can be achieved with vertically lapped nonwovens incorporated into various types of footwear. As used herein, by “footwear”, it is meant one or a plurality of apparels or garments that are used for protection of the feet against adversities of the environment, usually regarding ground textures and temperature. Footwear described herein primarily serves the purpose to ease the locomotion and prevent injuries but may also be used for fashion and adornment. Some exemplary types of footwear include, but are not limited to, boots, athletic shoes, dance flats, diabetic shoes, mules, high-tops, skate shoes, school shoes, sneakers, toe shoes, sandals, flip-flops, closed slippers, open slippers, clogs, surgical shoes, etc. The present nonwoven layers are highly suited as a replacement of synthetic fibers, materials (e.g. polyurethane) or coating of synthetic fibers on leathers or on fabrics in footwear, in which the one side of the layer comes in direct contact with the feet of the wearer; the feet being with or without socks. As noted above, all or portions of the nonwoven layers disclosed in the present invention are vertically lapped.
Regarding Claim 17, where Applicant seeks that the article of claim 1, wherein at least one of the contact portions is a facing layer that is not a carded or lapped material; the instant reference has different embodiments of different types of footwear and different parts within the footwear itself, such as the insole, midsole or outsole. Any or all of these can be made from a single layer or multiple layers of the vertically lapped nonwoven. Thus, depending on which part of the footwear is made there would be a contact portion with the wearer. Applicant is directed to ¶ 0020, where the instant reference teaches that the preferred embodiments of the present disclosure are directed toward multilayers of vertically lapped nonwovens in footwear. These embodiments benefit from an absorbency, breathability, as well as a cushioning functionality which can be achieved with vertically lapped nonwovens incorporated into various types of footwear. As used herein, by “footwear”, it is meant one or a plurality of apparels or garments that are used for protection of the feet against adversities of the environment, usually regarding ground textures and temperature. Footwear described herein primarily serves the purpose to ease the locomotion and prevent injuries but may also be used for fashion and adornment. Some exemplary types of footwear include, but are not limited to, boots, athletic shoes, dance flats, diabetic shoes, mules, high-tops, skate shoes, school shoes, sneakers, toe shoes, sandals, flip-flops, closed slippers, open slippers, clogs, surgical shoes, etc. The present nonwoven layers are highly suited as a replacement of synthetic fibers, materials (e.g. polyurethane) or coating of synthetic fibers on leathers or on fabrics in footwear, in which the one side of the layer comes in direct contact with the feet of the wearer; the feet being with or without socks. As noted above, all or portions of the nonwoven layers disclosed in the present invention are vertically lapped.
As stated above, Hollis et al. in fact teach both single layered and multilayer nonwovens. Hollis et al. teaches carded and lapped nonwovens in both a single and multilayered configurations and thus meets the want of a single layered lofted nonwoven. See Figure 1A and ¶ 0011, 0029. At ¶ 0029, most specifically, the instant patent states that “In some embodiments, the vertically lapped nonwoven layers may be arranged as a single layer or multiple layers.” And Hollis et al. do not teach that the contact portion is not a carded or lapped material. Applicant is directed to ¶ 0025, Hollis et al. teach additional ways to form the nonwoven in addition to carding or lapping such as meltblowing, spunbonding, air-laying, conforming, hydroentangling, and bonded carded web processes, may be used. Additionally, Applicant is directed to ¶ 0031, where the outer layer of the upper may further include textile materials, for example, a mesh cloth that provides enhanced air-permeability and moisture-wicking properties. Hollis et al. doesn’t state that this layer is carded or lapped. is a permeable wicking material; Applicant is directed to ¶ 0030, where the top layer 10 is made of hydrophilic materials to improve wicking and absorption of moisture.
Regarding Claim 18, where Applicant seeks that the article of claim 17, wherein the facing layer; Applicant is directed to ¶ 0031, where the outer layer of the upper may further include textile materials, for example, a mesh cloth that provides enhanced air-permeability and moisture-wicking properties. Hollis et al. doesn’t state that this layer is carded or lapped. is a permeable wicking material; Applicant is directed to ¶ 0030, where the top layer 10 is made of hydrophilic materials to improve wicking and absorption of moisture.
Regarding Claim 19, where Applicant seeks that the article of claim 1, wherein the fibrous material includes hydrophilic fibers; Applicant is directed to ¶ 0008, 0030, 0036 and 0039.
Regarding Claim 20, where Applicant seeks that the article of claim 1, wherein at least a portion of fibers, laps, segments between loops, or a combination thereof, of the fibrous material are generally vertical relative to a surface adapted to contact a user, wherein generally vertical is about 45 to about 135 degrees; Applicant is directed to Figure 1C.
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Regarding Claim 28, where Applicant seeks that the article of claim 1, wherein the lofted nonwoven fibrous material is a single carded and vertically lapped layer; Hollis et al. teaches carded and lapped nonwovens in both a single and multilayered configurations and thus meets the want of a single layered lofted nonwoven. See Figure 1A and ¶ 0011, 0029. At ¶ 0029, most specifically, the instant patent states that “In some embodiments, the vertically lapped nonwoven layers may be arranged as a single layer or multiple layers.”
Regarding Claim 29, where Applicant seeks that the article of claim 1, wherein each layer of the article is breathable; Applicant is directed to ¶ 0005-0006.it should be noted that Hollis’ invention is about moisture wicking through the layers whether it be one or multilayered. There are no layer’s present that are not porous. The structure of a nonwoven alone would be breathable just by the way it is manufactured.
Regarding modified Claim 30, where Applicant now seeks that the article of claim 1, wherein the pad material comprises a first contact portion, a second contact portion, and a carded and vertically lapped fibrous material located therebetween, wherein the first contact portion and the second contact portion are not carded and lapped materials; Applicant is directed to FIG. 1B and 1C is a cross-sectional side view of an exemplary dual layer of vertically lapped nonwovens after adhesion and its description [0030-0031]. The vertically lapped nonwovens are in a dual layer system 13, as shown in FIGS. 1B and 1C. In making of dual layer nonwovens, one vertically lapped nonwoven 10 is adhered to or otherwise connected to an underlying vertically lapped non-woven 11. The dual layer may be bonded, attached or adhered by a plurality of methods, e.g., chemical bonding (e.g., saturation, spraying screen printing, and foam), mechanical bonding (e.g., needle punching, hydro-entangling) and thermal bonding (e.g., air heating and calendaring), etc. In the most preferred embodiment, the top layer 10 is made of hydrophilic materials to improve wicking and absorption of moisture whereas the bottom layer 11 is made of hydrophobic materials for fast drying and moisture removal.
Hollis et al. teach additional ways to form the nonwoven in addition to carding or lapping such as meltblowing, spunbonding, air-laying, conforming, hydroentangling, and bonded carded web processes, may be used.
Regarding Claim 31, where Applicant seeks that the article of claim 30, wherein the first contact portion or the second contact portion is hydrophilic, and wherein the other of the second contact portion or the first contact portion is hydrophobic; Applicant is directed to the abstract, ¶ 0007, 0008, 0015, 0017, 0030-0033, Figure 1B and 1C, 3 and Figure 5. See also rationale set forth for Claim 30.
Regarding Claim 32, where Applicant seeks that the article of claim 30, wherein at least one of the first contact portion and the second contact portion is a wicking layer; Applicant is directed to ¶ 0030-0033. See also rationale set forth for Claim 30.
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.
Regarding Claim 7, where Applicant seeks that the article of claim 1, wherein the pad material includes one or more air flow channels; Applicant is directed to Figure 1 C ref 12 [¶0031-0032] which shows channels that allows air to pass freely.
Regarding Claim 8, where Applicant seeks that the article of claim 7, wherein the one or more air flow channels permit ventilation from the article of footwear, air flow into the article of footwear, or both; Applicant is directed to ¶ 0031-0032, which shows channels or gaps are formed from the lapping which allows air to pass freely.
Regarding Claim 9, where Applicant seeks that the article of claim 7, wherein the one or more air flow channels extend generally parallel to a leg of the wearer such that heat from within the article of footwear can rise from the article of footwear; Applicant is directed to Figure 1 C ref 12 [¶ 0031-0032] which shows channels that allows air to pass freely. Hollis et al. teaches carded and lapped nonwovens in both a single and multilayered configurations and thus meets the want of a single layered lofted nonwoven. See Figure 1A and ¶ 0011, 0029. At ¶ 0029, most specifically, the instant patent states that “In some embodiments, the vertically lapped nonwoven layers may be arranged as a single layer or multiple layers.”
Applicant is directed to Figure 1 C ref 12 [¶ 0031-0032] which shows channels that allows air to pass freely and the gaps may be larger, more defined, and/or regular by using a molding process, followed by space-permitting adhesion methods (e.g., stitching).
Furthermore, it should be noted that 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 pad material to have an orientation that is parallel; or the wearer or in any direction for that matter, 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, angle, orientation, 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). Also, Applicant has not shown an unexpected results with having the orientation of the pad in any given direction.
Regarding Claim 10, where Applicant seeks that the article of claim 7, wherein one or more air flow channels are formed by a localized compression operation, stitching, thermoforming, or a combination thereof; Applicant is directed to Figure 1 C ref 12 [¶ 0031-0032] which shows channels that allows air to pass freely and the gaps may be larger, more defined, and/or regular by using a molding process, followed by space-permitting adhesion methods (e.g., stitching).
Claim(s) 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over USPUB 20210282500A1 issued to Hollis et al.
Regarding Claim 13, where Applicant seeks that the article of claim 1, wherein the pad material has a compression set such that the pad material retains at least a partial form of the wearer upon removal of the article of footwear for at least a certain period of time: Hollis et al alludes to compression but does not specifically state that the material retains at least a partial form of the wearer upon removal of the article of footwear. It is the position of the Office that a skilled artisan would have logically concluded with the materials being the same both structurally, compositionally and the same final end use would yield this same behavior as these would be the result of routine engineering and do not constitute a leap of inventiness.
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.
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/Arti Singh-Pandey/
Primary Patent Examiner
Art Unit 1759
asp
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