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 .
DETAILED ACTION
Response to Amendment
Applicant’s amendment filed February 5, 2026 has been received, Claims 1-6 are currently pending.
Information Disclosure Statement
The listing of references in the Specification/International Search Report is not a proper information disclosure statement. 37 CFR 1.98(b) requires a list of all patents, publications, or other information submitted for consideration by the Office, and MPEP § 609.04(a) states, "the list may not be incorporated into the specification but must be submitted in a separate paper." Therefore, unless the references have been cited by the examiner on form PTO-892, they have not been considered.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
1. Claim(s) 1-6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Manning (US 2009/0205097) in view of Beisemann (DE 102010048733 A1).
Regarding Claim 1, Manning discloses a footwear shaper device, comprising a contoured insert (10d,10e) having a tapered distal end (i.e. toe end, as seen in annotated Figure below) and a wider proximal end (at Wa), a sheath (16) having a closed distal end (i.e. toe end of 16) and an open proximal end (i.e. foot opening of 16), and a pouch (10f creates a pouch) integrated with a top portion of the sheath, the pouch configured to receive the insert (as seen in Fig.2 & 3; para.16 & 20), wherein the footwear shaper device is fitted to a foot, and the foot is inserted into a shoe, such that the insert occupies vertical space between the wearer's foot and an interior upper portion of the shoe to reduce creasing of the shoe upper portion (as seen in Fig.2 & 3; para.12).
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Manning does not disclose the insert having a graduated thickness. However, Beisemann teaches a contoured insert (1) having a graduated thickness (as seen in Fig.1 & 2).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the insert of Manning to have a graduated thickness, as taught by Beisemann, in order to provide the desired level of cushioning to the top of a user’s foot, for enhanced comfort and support.
Regarding Claim 2, Manning discloses a footwear shaper device of claim 1, wherein the contoured insert is in a trapezoidal or tapered toe-box shape (see annotated Figure above).
Regarding Claim 3, Manning discloses a footwear shaper device of claim 1, wherein the contoured insert is in a round (of 10c) or square toe box shape (as seen in Fig.1).
Regarding Claim 4, Manning discloses a footwear shaper device of claim 1, wherein the contoured insert (10d,10e) has a three-dimensional polygonal configuration (as seen in Fig.1 & 3).
Regarding Claim 5, Manning discloses a footwear shaper device of claim 1, wherein the contoured insert is made from materials comprising, gel, silicone, natural fibers, synthetic fibers, foam, elastomers, hook-and loop closures, adhesives, elastics, and combinations thereof (para.16 & 18).
Regarding Claim 6, Manning discloses a method for reducing shoe upper creasing while encouraging natural foot mechanics during walking, the method steps comprising: obtaining the footwear shaper device of claim 1 (Abstract & see Claim 1 above), inserting a wearer’s foot, toes first, into a sheath (16) of the footwear shaper device, whereby a contoured insert (10d,10e) of the footwear shaper device rests on top of the wearer’s toes (para.12), inserting the wearer’s foot with the footwear shaper device into a shoe (20) having an interior upper portion, reducing a vertical distance between the shoe interior upper portion and a wearer’s metatarsals and phalanges (as seen in Fig.3, the height of 10d,10e would reduce the vertical height between the shoe and a wearer), and placing pressure with the contoured insert of the footwear shaper device against the shoe interior upper portion to prevent sagging and creasing of the shoe interior upper portion and a shoe top exterior while encouraging natural foot mechanics while walking (as seen in Fig.2; inasmuch as has been claimed by Applicant, the structure of Manning is capable of placing pressure on the shoe upper to prevent sagging and creasing, while also allowing a user to walk normally).
Response to Arguments
In view of Applicant's amendment, the search has been updated, and new prior art has been identified and applied. Applicant's arguments have been considered but are moot in view of the new ground(s) of rejection.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MEGAN E LYNCH whose telephone number is (571)272-3267. The examiner can normally be reached Monday to Friday, 8:00am-4:00pm EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Khoa Huynh can be reached at 571-272-4888. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MEGAN E LYNCH/Primary Examiner, Art Unit 3732
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