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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on February 6, 2026 has been entered.
Response to Amendment
The amendments filed with the written response received on February 6, 2026 have been considered and an action on the merits follows. As directed by the amendment, claims 1, 2 and 7 have been amended; claims 14 and 15 are canceled; and claims 16-18 have been added. Accordingly, claims 1-13 and 16-18 are pending in this application, with an action on the merits to follow.
Specification
The specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required: claim 1 recites that “the front portion and heel portion are generally coplanar in a relaxed position” (lines 7-8) and “in the relaxed position each of the respective shoe ends are generally coplanar with one another”. Nowhere in the written Specification is the term “generally coplanar”, mentioned. Examiner notes that the drawings appear to have support for “generally coplanar” (see Figs. 3 and 4). However, the written Specification is still missing this language, as noted previously.
Claim Objections
Claims 5, 10 and 17 are objected to because of the following informalities:
Claim 5, line 2: “center front” should recite “center of the front”
Claim 10, line 2: “back of sole component” should recite “back of the sole component”
Claim 17, line 2: “center front” should recite “center of the front”
Appropriate correction is required.
Claim Rejections - 35 USC § 112(b)
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 1 (and claims 2-13 and 16-18 at least due to dependency from claim 1) are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 1, Applicant recites “the front portion and heel portion are generally coplanar in a relaxed position” (lines 7-8). It is indefinite as to the structure with which the front portion and heel portion are generally coplanar. Correction is required. Examiner suggests “the front portion and heel portion are generally coplanar with one another in a relaxed position”.
Regarding claim 7, Applicant recites “and further including a bolt tightener and wherein the threaded nut is configured to be tightened by the bolt tightener”. As best as can be understood, the spiked shoe itself does not appear to include “a bolt tightener” as part of the spiked shoe, since the bolt tightener is actually an external device that would be useable with the shoe. Correction is required. For purposes of examination, the spiked shoe is not being interpreted as actually requiring “a bolt tightener”, absent the preamble of the claim reciting a “kit”, or equivalent assembly/ensemble term, instead of just “a spiked shoe” alone. If Applicant does not intend for the bolt tightener to be required as part of the spiked shoe, then Examiner suggests deleting the language “further including a bolt tightener” and subsequently changing the language “wherein the threaded nut is configured to be tightened by the bolt tightener” to “wherein the threaded nut is configured to be tightened by a bolt tightener”. If Applicant intends for there to be a bolt tightener structurally present and required as part of the claimed subject matter, then Examiner suggests Applicant recite a “kit” claim that includes both the spiked shoe and the bolt tightener.
Regarding claim 9, Applicant recites language that is already recited in claim 7 (from which claim 9 depends) and it is unclear whether claim 9 is positively reciting yet another bolt tightener. Correction is required. Examiner suggests canceling claim 9 or reciting subject matter that is not merely repeated from a parent claim.
Claim Rejections - 35 USC § 112(d)
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 9 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Regarding claim 9, Applicant recites language that is already recited, verbatim, in claim 7 (from which claim 9 depends) and it is unclear how claim 9 further limits a claim from which it depends (claim 9 does not further limit claim 7). Correction is required. Examiner suggests canceling claim 9 or reciting subject matter that is not merely repeated from a parent claim.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
Claims 1-6, 10-12 and 16-18, as best as can be understood, are rejected under 35 U.S.C. 103 as being unpatentable over McNeil et al. (hereinafter “McNeil”) (USPN 4,525,939) in view of EITHER of Elliott (USPN 1,070,951) OR Smith et al. (hereinafter “Smith”) (US 2016/0135540).
Regarding independent claim 1, McNeil discloses a spiked shoe (non-slip attachment #10; Figs. 1-4) for use when applying resinous coatings and attachable to a user's footwear (the attachment is capable of being attached to a user’s footwear (see ghost-view footwear #12 in Fig. 1, and at least capable of being used when applying resinous coatings; Examiner notes the emphasized/italicized language is a statement of intended use that does not further structurally define the claimed invention in any patentably-distinguishing sense), the spiked shoe comprising: a sole component (in combination, the toe portion #14, the center bridge #24’ and the heel portion #18 define an overall sole component for the device #10) being attachable to the user's footwear (as noted above; see Fig. 1), the sole component having a front, a back, a center and sides (see Figs. 1-4, which show an arbitrary front, an arbitrary back, an arbitrary center and arbitrary sides for the device), the sole component having a front portion (generally, toe portion #14 is a front portion; 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)), a heel portion (generally, heel portion #18) and a flexible hinge attached between the front portion and the heel portion (center bridge #24’ (Fig. 4) is a flexible hinge that is attached between the front and heel portions, inasmuch as the claim has structurally defined the “flexible hinge”; bridge #24’ is made of a corrugated spring steel (Col. 2, Lines 51-53 of McNeil), wherein resiliently stretchable spring steel has capability to bend, especially along a transverse axis at the corrugations), whereby the heel portion is configured to flex independently of the front portion (since the center bridge #24’ spring steel material is resilient and stretchable, the heel portion is at least capable of flexing independently of the front portion), and the front portion and heel portion are generally coplanar [with one another] in a relaxed position (see Fig. 4, which shows toe portion #14 and heel portion #18 to be generally coplanar and in a relaxed position (i.e. when the center bridge #24’ is not bent/flexed in any particular askew direction)); and a plurality of spikes extending downwardly from the sole component (spikes #22 on the heel portion and spikes #16 on the toe portion; all spikes extend downwardly from the sole component), each spike of the plurality of spikes having a respective shoe end (the end that is closest to the toe portion #14 for the spikes #16; the end that is closest to heel portion #18 for the spikes #22) and a respective distal end (each spike’s opposing end configured to contact the ground, in use, is a respective distal end), and in the relaxed position each of the respective shoe ends are generally coplanar with one another (see Figs. 1 and 4), and each spike having a location on the sole component (the spikes are part of the overall device #10 (i.e. shoe), so they have “a location” on the shoe). McNeil shows that the spikes have angled side surfaces relative to a vertical (see Figs. 1 and 4 of McNeil), but in the context of this subject matter in relation to Applicant’s disclosure, it cannot be definitely determined whether the overall angle of the spikes are “at an angle to a vertical” (i.e. for each spike #22/16 a midpoint of the top end of the spike appears to be aligned vertically with a midpoint of a bottom end of the spike), as recited in the claim.
Elliott teaches a footwear attachment device with a sole with spikes in various locations on the sole, wherein the spikes, dependent on their location, are angled downwardly and rearwardly, outwardly or forwardly in order to help prevent the wearer from slipping in any direction (Page 1, Lines 11-15, 39-42, 108-111 of Elliott).
Smith teaches a shoe with a sole that has spikes depending downwardly therefrom, wherein the spikes can be disposed at an angle (obtuse or acute) relative to the surface from which the spikes emanate (the last two sentences of ¶ 0020 of Smith detail that the spikes may extend perpendicular to, substantially perpendicular to or outward at an acute or obtuse angle in relation to the surface of the sole of the shoe; ¶ 0020 of Smith describes acute or obtuse angles for the spikes’ extension from the surface of the shoe sole; Figs. 1-4 of Smith show that the spikes are oriented at angles in the front region, the sides and heel region wherein the spikes’ distal ends are angled differently relative to the other spikes in other locations on the sole).
McNeil, Elliott and Smith all teach analogous inventions in the field of spiked sole footwear. It would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to have oriented the spikes in McNeil’s sole to be angled relative to a vertical (as taught by both Elliott and Smith) in order to provide the user with better protection from slippage in any direction, in use, as such a benefit is taught by Elliott. As a result of the modification, each spike of the plurality of spikes would be at an angle to a vertical (Examiner notes that, at this point in the claim language, only two spikes must be present in order to address “a plurality”).
Regarding claim 2, the modified device of McNeil (i.e. McNeil in view of EITHER of Elliott OR Smith, as applied to claim 1 above) renders obvious that each angle of the plurality of spikes is an orientation angle and the orientation of each orientation angle of the plurality of spikes is dependent on the location of the spike on the sole component (each spike of the plurality of spikes has an angle that is an orientation angle and each said spike is at a particular location, so the orientation angle is affected by the location of the spike, at least in some sense; Examiner notes that claim 2 does not specify or clarify what the location-dependency actually is for each angle).
Regarding claim 3, the modified device of McNeil (i.e. McNeil in view of EITHER of Elliott OR Smith, as applied to claim 2 above) renders obvious that the plurality of spikes includes spikes at the front of the sole component (see Figs. 1, 3 and 4 of McNeil; the two spikes immediately rearward of the spike closest to the front-most end of the toe portion #14 are “spikes at the front of the sole component” inasmuch as the claim requires) and wherein the spikes at the front of the sole component of the plurality of spikes are angled forwardly from the respective shoe end to the respective distal end (as a result of the modification of McNeil in view of EITHER of Elliott OR Smith, the front spikes would be oriented downward and forward from the shoe end to the distal end (see spikes #2 in Fig. 4 of Elliott which are angled downwardly and forwardly; see front spikes in Smith which are angled downwardly and forwardly)).
Regarding claim 4, the modified device of McNeil (i.e. McNeil in view of EITHER of Elliott OR Smith, as applied to claim 2 above), at this point, is silent to there being spikes at the sides of the sole component and wherein the spikes at the sides of the sole component of the plurality of spikes are angled outwardly from the respective shoe end to the respective distal end. However, Smith teaches that its spiked sole includes spikes at the sides of its own sole component and wherein the spikes at the sides of the sole component of the plurality of spikes are angled outwardly from the respective shoe end to the respective distal end (see annotated Fig. 3 below of Smith; there are spikes at the sides that are angled outwardly from the shoe end to the distal end; such a teaching by Smith was incorporated into McNeil’s sole). It would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to have added instances of these side, outwardly-angled spikes to the sole of McNeil in order to provide additional prevention of slippage in a medial-to-lateral direction of the device, in use, since the outwardly-oriented side spikes (added into McNeil’s sole) would be inclined to create a frictional contact point with the walking surface in the shoe’s transverse direction if angled outwardly more-so than if angled directly downwardly, which would be more prone to the device tipping over if a force is applied laterally.
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Regarding claim 5, the modified device of McNeil (i.e. McNeil in view of EITHER of Elliott OR Smith, as applied to claim 2 above) renders obvious that the plurality of spikes includes spikes along the center [of the] front of the sole component and wherein the spikes along the center of the front of the sole component of the plurality of spikes are angled forwardly from the respective shoe end to the respective distal end (see the rejection of claim 3 above, wherein the same exemplary spikes are at a center of the front of the sole component and are angled downwardly and forwardly, post modification of McNeil in view of EITHER of Elliott OR Smith).
Regarding claim 6, the modified device of McNeil (i.e. McNeil in view of EITHER of Elliott OR Smith, as applied to claim 2 above) renders obvious that the plurality of spikes includes spikes along the center of the back of the sole component (see Figs. 1, 3 and 4 of McNeil; the two spikes closest to the rear-most end of heel portion #18 are “spikes at the center of the back of the sole component” inasmuch as the claim requires) and wherein the spikes along the center of the back of the sole component of the plurality of spikes are angled backwardly from the respective shoe end to the respective distal end (as a result of the modification of McNeil in view of EITHER of Elliott OR Smith, the rear spikes would be oriented downward and rearward from the shoe end to the distal end (see spike #26 in Fig. 2 of Elliott which has an angle downwardly and rearwardly; see rear end spikes in Smith which are angled downwardly and rearwardly)).
Regarding claim 10, the modified device of McNeil (i.e. McNeil in view of EITHER of Elliott OR Smith, as applied to claim 1 above) renders obvious that the shoe further includes a heel guard extending upwardly from the back of [the] sole component (rear heel-engaging flange #20 is a heel guard that extends upwardly from the back of the heel portion #18 of the sole; see Fig. 1 of McNeil).
Regarding claim 11, the modified device of McNeil (i.e. McNeil in view of EITHER of Elliott OR Smith, as applied to claim 1 above) renders obvious that the sole component further includes a floor stop extending downwardly from the front of the sole component (claim 11 depends directly from claim 1; since claim 1 only positively recites “a plurality of spikes”, any two existing spikes shown above in Figs. 1, 3 and 4 of McNeil would serve as “a plurality of spikes” when addressing claim 1; since there are spikes at the front of the shoe sole that extends downwardly from the front of the shoe, then any of those front spikes would meet the limitation of “a floor stop extending downwardly from the front of the shoe” while other spikes rearward of those front spikes would serve as the plurality of spikes).
Regarding claim 12, the modified device of McNeil (i.e. McNeil in view of EITHER of Elliott OR Smith, as applied to claim 1 above) renders obvious that the shoe has at least two straps (#28 and #34; Figs. 1, 2 and 4 of McNeil).
Regarding claim 16, the modified device of McNeil (i.e. McNeil in view of EITHER of Elliott OR Smith, as applied to claims 1-3 above) renders obvious all the limitations of claims 1-3, as set forth above, but, at this point, is silent to there being spikes at the sides of the sole component and wherein the spikes at the sides of the sole component of the plurality of spikes are angled outwardly from the respective shoe end to the respective distal end. However, Smith teaches that its spiked sole includes spikes at the sides of its own sole component and wherein the spikes at the sides of the sole component of the plurality of spikes are angled outwardly from the respective shoe end to the respective distal end (see annotated Fig. 3 above of Smith in the 35 U.S.C. 103 rejection of claim 4; there are spikes at the sides that are angled outwardly from the shoe end to the distal end; such a teaching by Smith was incorporated into McNeil’s sole). It would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to have added instances of these side, outwardly-angled spikes to the sole of McNeil in order to provide additional prevention of slippage in a medial-to-lateral direction of the device, in use, since the outwardly-oriented side spikes (added into McNeil’s sole) would be inclined to create a frictional contact point with the walking surface in the shoe’s transverse direction if angled outwardly more-so than if angled directly downwardly, which would be more prone to the device tipping over if a force is applied laterally.
Regarding claim 17, the modified device of McNeil (i.e. McNeil in view of EITHER of Elliott OR Smith, as applied to claims 1-3 and 16 above) renders obvious all the limitations of claims 1-3 and 16, as set forth above, and further renders obvious that the plurality of spikes includes spikes along the center [of the] front of the sole component and wherein the spikes along the center of the front of the sole component of the plurality of spikes are angled forwardly from the respective shoe end to the respective distal end (see the rejection of claim 3 above, wherein the same exemplary spikes are at a center of the front of the sole component and are angled downwardly and forwardly, post modification of McNeil in view of EITHER of Elliott OR Smith; Examiner notes that claim 17 does not require that the plurality of spikes “further” includes spikes along the center of the front of the sole component).
Regarding claim 18, the modified device of McNeil (i.e. McNeil in view of EITHER of Elliott OR Smith, as applied to claims 1-3, 16 and 17 above) renders obvious all the limitations of claims 1-3, 16 and 17, as set forth above, and further renders obvious that the plurality of spikes includes spikes along the center of the back of the sole component (see Figs. 1, 3 and 4 of McNeil; the two spikes closest to the rear-most end of heel portion #18 are “spikes at the center of the back of the sole component” inasmuch as the claim requires) and wherein the spikes along the center of the back of the sole component of the plurality of spikes are angled backwardly from the respective shoe end to the respective distal end (as a result of the modification of McNeil in view of EITHER of Elliott OR Smith, the rear spikes would be oriented downward and rearward from the shoe end to the distal end (see spike #26 in Fig. 2 of Elliott which has an angle downwardly and rearwardly; see rear end spikes in Smith which are angled downwardly and rearwardly)).
Claims 7-9, as best as can be understood, are rejected under 35 U.S.C. 103 as being unpatentable over McNeil in view of EITHER of Elliott OR Smith as applied to claim 1 above, and further in view of Smith (hereinafter “Smith-090”) (USPN 5,836,090) and Savage (USPN 6,182,379).
Regarding claims 7 and 9, the modified device of McNeil (i.e. McNeil in view of EITHER of Elliott OR Smith, as applied to claim 1 above) renders obvious all the limitations of claim 1, as set forth above, but does not teach that each spike of the plurality of spikes is removable from the sole component and includes a threaded bolt and a respective threaded nut and the threaded bolt extends through the sole component at an angle (claim 7) and silent to the spiked shoe further including a bolt tightener and wherein the threaded nut is configured to be tightened by the bolt tightener (claims 7 and 9).
Smith-090 teaches a spiked shoe with removable spikes (studs #22, spikes #130/140/142), wherein the removable spikes include a removable threaded bolt (threaded shaft #124), a threaded nut (#112), wherein the threaded bolt extends through the shoe (see Fig. 4 of Smith-090, wherein the shaft #124 is shown to extend at least partially through the shoe’s soleplate #12).
Savage teaches a spiked shoe, wherein the spikes are removable attached to the sole via threads (similarly as in modified McNeil as applied to claim 7 above), wherein Savage’s device includes a tightening tool #47 for assisting with tightening the components of the spikes onto the bottom of the sole (Fig. 9; Col. 4, Lines 9-19 of Savage).
Modified McNeil, Smith and Savage all teach analogous inventions in the field of spiked shoes. It would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to have utilized the removable threaded fastener arrangement of the studs/spikes of Smith-090 as a substitution for the spikes of McNeil, in order to provide a way to adjust the type of exposed head #120 being used, which depends on the end use, as Smith-090 teaches that the studs #22 and spikes #130/140/142 can be used for different walking surfaces (Col. 4, Lines 45-46 of Smith-090), and further since it has been held that constructing a formerly integral structure in various separable elements involves only routine skill in the art (See MPEP 2144.04(V)(C)). It would have been further obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to have provided the modified shoe of McNeil with a tightening tool to assist with tightening the threaded nuts to the spikes, as such tools are taught by Savage, and are very well-known in the art. As a result of the modification, the modified shoe of McNeil (i.e. McNeil in view of EITHER of Elliott OR Smith, and further in view of Smith-090) would include each spike of the plurality of spikes being removable and including a threaded bolt and a respective threaded nut, wherein the threaded bolt extends through the sole component at an angle (as taught by Smith-090 and incorporated into modified McNeil; modified McNeil already renders obvious that the spikes are disposed at an angle (via the incorporated teachings from EITHER of Elliott OR Smith), as explained above), wherein the modified spiked shoe further includes a bolt tightener and wherein the threaded nut is configured to be tightened by the bolt tightener (as explained above).
Regarding claim 8, the modified device of McNeil (i.e. McNeil in view of EITHER of Elliott OR Smith, and further in view of Smith-090 and Savage, as applied to claim 7 above) renders obvious all the limitations of claim 7, as set forth above, and further that the sole component has a spike holder formed in the sole component (the sole itself would have the cavity that would be a spike holder) and a raised boss for receiving and positioning the respective spike at an angle (modified McNeil, as noted above, renders obvious that the spikes are disposed at angles (via the incorporated teachings from EITHER of Elliott OR Smith); Smith-090 shows that there is a raised boss #114 in Fig. 4 that is for receiving and positioning the respective spike).
Claim 13, as best as can be understood, is rejected under 35 U.S.C. 103 as being unpatentable over McNeil in view of EITHER of Elliott OR Smith as applied to claims 1 and 12 above, and further in view of Gerber (USPN 7,117,615).
Regarding claim 13, the modified device of McNeil (i.e. McNeil in view of EITHER of Elliott OR Smith, as applied to claims 1 and 12 above) renders obvious all the limitations of claims 1 and 12, as set forth above, but does not teach that the sole component further includes a post, and at least one strap of the at least two straps has at least one oblong hole formed in the at least one strap for attachment to the post on the sole component.
Gerber teaches a footwear device, wherein the sole of the device has a coupling #52/54/56 (i.e. a post) configured to mate with an oblong hole (#42/44/46/48) on a strap of the shoe (flange #60 is a strap) in order to mate the strap with the sole.
Modified McNeil and Gerber teach analogous inventions in the field of footwear devices with strap attachments. It would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to have substituted the attachment of the straps in McNeil with its sole for the male couplings and oblong holes of Gerber in order to provide an easier donning capability, whereas the user would be capable of simply stepping their existing footwear onto the spiked sole’s top surface and wrapping the straps over the existing footwear to couple the straps’ female hole to the male coupling post in order to secure the spiked shoe to the existing footwear, without a need to aim the foot through the rear and front straps and manipulating the belt buckle arrangement native to McNeil. As a result of the modification, there would be a post on the sole component (via male couplings from Gerber), and at least one strap of the at least two straps has at least one oblong hole formed in the at least one strap for attachment to the post on the sole component (as explained above).
Response to Arguments
Applicant's arguments filed February 6, 2026 have been fully considered but they are not persuasive.
Applicant argues that McNeil does not teach or suggest a flexible hinge, and instead discloses a resiliently stretchable center bridge made of plastic or rubber (bridge #24; Fig. 1-3 implementation), and alternatively, a corrugated spring steel bridge (bridge #24’; Fig. 4 implementation). Applicant argues that since McNeil’s purpose for the bridge is to provide elastic tension to hold the toe and heel portions together to allow the device to stretch to accommodate different-sized footwear, that it is “fundamentally different in both structure and function from the claimed flexible hinge” (Page 12, top paragraph of Remarks). Applicant argues that the present invention’s flexible hinge is not designed for stretching or tension, but instead is “an articulating joint designed to sole a different technical problem”. This is not found persuasive, because (in light of the updated grounds of rejection) the bridge #24’ is a type of hinge, even though McNeil does not use the term “hinge” in its description. The corrugated spring steel is made of material that is resiliently stretchable (i.e. “spring” steel) and has a corrugated shape to assist in the bending and flexing of the bridge. Examiner notes that Applicant has not structurally defined their own “flexible hinge” with any specific structural details. The originally filed Specification only states that there is a flexible hinge 22 to permit the heel portion to flex independently of the front portion (this is a function that the bridge #24’ in McNeil would be able to perform, due to the shape of the corrugation, and the material of the spring steel from which the bridge #24’ is constructed). Applicant’s illustration shows a side view of the hinge 22 in Figs. 3 and 4, which is essentially a single curved bend. The bridge #24’ includes several instances of such a curved bend, to define the corrugated shape. The intended purpose of the hinge in Applicant’s device being different than the intended purpose of the bridge #24’ in McNeil does not change the fact that McNeil’s bridge #24’ structure meets the claim limitations of the “flexible hinge” as recited in claim 1. Accordingly, McNeil’s bridge #24’ is deemed to meet the structural and functional limitations defined in the claim with respect to it being a “flexible hinge” and the prior art’s applicability is maintained, in the new grounds of rejection explained above.
Applicant argues (regarding the combination of McNeil with either of Elliott or Smith) that the motivation to combine the references as suggested by Examiner would not have led to the claimed invention because “they do not teach or suggest the specific, claimed combination of forwardly, outwardly, and backwardly angled spikes” and that “the prior art does not recognize the problem solved by this specific combination, nor does it suggest this structure would yield the resulting advantages”. Examiner notes that Elliott and Smith both teach spiked soles, wherein the spikes’ orientation relative to a vertical plane differs at the front end, sides and rear end of the soles (see the 35 U.S.C. 103 rejection of independent claim 1 above; “spikes projecting downwardly…and also projecting laterally and forwardly and rearwardly of the shoe to prevent the wearer from slipping” (Page 1, Lines 11-15 of Elliott); the last two sentences of ¶ 0020 of Smith detail that the spikes may extend perpendicular to, substantially perpendicular to or outward at an acute or obtuse angle in relation to the surface of the sole of the shoe; ¶ 0020 of Smith describes acute or obtuse angles for the spikes’ extension from the surface of the shoe sole; Figs. 1-4 of Smith show that the spikes are oriented at angles in the front region, the sides and heel region wherein the spikes’ distal ends are angled differently relative to the other spikes in other locations on the sole). While the prior art may provide for structural features for a different purpose than Applicant’s intended purpose, the resulting structure from the 103 modifications is the same as the claimed invention. It is a well-known concept in the art of spiked soles (as evidenced in Smith and Elliott) that angling the spikes forwardly at the front, outwardly at the sides, and rearwardly at the heel/rear of the sole result in improved slip resistance, such as on irregular terrain or wet/icy terrain where the force vector of a wearer would need additional directional support than only vertically or orthogonally to the terrain.
Accordingly, the combination of the prior art is deemed proper and is maintained.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAMESON COLLIER whose telephone number is (571)270-5221. The examiner can normally be reached Monday - Friday 8 am - 5 pm.
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/JAMESON D COLLIER/ Primary Examiner, Art Unit 3732