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 .
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
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.
Claims 1-7, 12-14 and 18 are rejected under 35 USC 103 being unpatentable over Saburo (JP 2429346 Y2) in view of Blakely et al (US 20140109286) and Schlegel (US 3198149).
Regarding claim 1, Saburo teaches an article of footwear (shoe A) comprising a sole defining a length direction and a width direction of the article of footwear (see Figure 1 & [0007]) wherein said length and width directions may be defined as being perpendicular to each other. Saburo teaches that the shoe comprises an upper connected to the sole including at least one panel including a plurality of layers (1, 2, 4) that are secured together by an embroidery stitching pattern (3) (see Figures 1-2 & [0007]). Saburo teaches the layers are shell portion (1) equated with the first layer, a cushioning material (2) and the back reinforcing material (4) equated with the second layer.
Saburo differs and does not teach the stitching pattern for reentrant shaped cell units.
Blakely is directed to articles of apparel with auxetic fabric. Blakely teaches at least one garment panel made of a fabric including a first yarn having a first denier and a second yarn having a second denier, the first denier being greater than the second denier. The first yarn forms an auxetic structure comprising a pattern of interconnected segments on the garment panel. The second yarn forms a fill portion extending between the interconnected segments of the auxetic structure (ABST). Blakely teaches apparel such as clothing and footwear [0043].
Blakely teaches a stitched fabric with a pattern of yarns that form an auxetic pattern as shown in Fig. 11 and 12. Fig. 11 and 12 provide for a garment panel 118 is comprised of a fabric including an auxetic matrix, provided by an auxetic structure portion 120, embedded in a non-auxetic web, provided by a fill portion 122. The fabric includes a plurality of yarns, including a first yarn 104, a second yarn 106, and a third yarn 108, that are knitted, woven or otherwise stitched together or interlaced to form the fabric. The yarns 104, 106 and 108 are stitched together in such a manner that the fabric that includes both the auxetic structure portion 120 and the fill portion 122. As indicated in FIG. 12, the auxetic structure portion 120 is formed of stitchings of the first yarn 104 and the third yarn 108. The fill portion 122, meanwhile, is formed of stitchings of the second yarn 106 and the third yarn 108. The term "yarn" as used herein refers to a strand or thread that is used to form a fabric [0091]. Blakely teaches the auxetic structure is produced by the stitching yarns [0091].
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The pattern is the same pattern of embroidery stitching as shown in Blake and therefore equated with an auxetic structure and reentrant structure of claims 14 and 18.
Blakely teaches the auxetic arrangement 14 disclosed herein may be advantageously used to form various portions of shoes because the auxetic arrangement 14 is configured to smoothly fit multiple curvatures on the wearer without the need for numerous seams or cuts in the material. The auxetic arrangement 14 may be used to form a complete shoe upper or limited portions of the shoe upper, including the heel, ankle, arch, toes and instep [0079].
Saburo and Blakely differ and do not teach the method requires stretching the second layer prior to stitching.
Schlegel is directed to a machine for making stretchable quilted fabric for garments. The quilted fabric invention comprises a stretchable lower or foundation sheet, on which is superposed an upper or facing sheet and, preferably a filler sheet or layer between the foundation sheet and the facing sheet, the assembly of these sheets being stitched together by stitches spaced throughout the area of the fabric. The facing sheet and the filler layer are contracted and puffed or puckered between the stitches when the fabric is not stretched but straighten when the foundation sheet is stretched. The foundation sheet is one that stretches when a stretching force is applied and contracts when the force or stress is released. This is of advantage in giving greater freedom of movement when the fabric is used in garments, or articles of apparel, in quilting, and for various other purposes when it is desired to provide a close fitting cover for articles. The foundation or under sheet may be of the type known as "tricot." The filler layer, when, as generally is the case, a filler layer is used, may be a felted sheet of more or less closely felted fibers or it may be an unfelted layer of feathers, down, or other loosely assembled material. The stitching holds the filler layer in place between the foundation sheet and the facing sheet. The facing sheet may be of woven fabric or of a sheet of leather or other suitable material (col. 1, lines 10-35).
Schlegel is directed to a machine for making stretchable quilted fabric for garments. The quilted fabric invention comprises a stretchable lower or foundation sheet, on which is superposed an upper or facing sheet and, preferably a filler sheet or layer between the foundation sheet and the facing sheet, the assembly of these sheets being stitched together by stitches spaced throughout the area of the fabric. The facing sheet and the filler layer are contracted and puffed or puckered between the stitches when the fabric is not stretched but straighten when the foundation sheet is stretched. The foundation sheet is one that stretches when a stretching force is applied and contracts when the force or stress is released. This is of advantage in giving greater freedom of movement when the fabric is used in garments, or articles of apparel, in quilting, and for various other purposes when it is desired to provide a close fitting cover for articles.
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As to claim 1, the fabric is formed by stretching the stretchable lower sheet, stitching the sheets together and releasing the sheets to form a puckered sheet.
It would have been obvious to one of ordinary skill in the art before the effective filing date to employ the stretch quilting technique of Schlegel motivated to produce fabric that can stretch without stretching the filler material and the facing sheet to provide wind and rain resistance and increase comfort of a stretchable fabric. It would have been obvious to one of ordinary skill in the art before the effective filing date to use a known technique of Schlegel and the results of producing a fabric laminate bulges would have been predictable. It would have been obvious to one of ordinary skill in the art before the effective filing date to employ reentrant shaped stitched pattern motivated to provide auxetic properties to the upper.
As to claim 2, Saburo and Schlegel differ and do not teach an auxetic structure.
Blakely teaches an auxetic structure (ABST); [0091].
It would have been obvious to one of ordinary skill in the art before the effective filing date to employ stitching in an auxetic pattern motivated to produce a fabric with auxetic properties.
As to claim 3, Saburo in view of Blakely differ and do not teach the method of stretching the base fabric and then stitching.
Schlegel teaches the base foundation layer is stretched. The foundation sheet is thereby carried by the chains to the quilting machine and is stretched transversely as the chains, leaving the planes of rotation of the sprocket wheels, curve concavely as shown in FIG. 2 to be engaged by the guide sprocket wheels 53 and 54 in their respective planes of rotation (col. 6, lines 15-24).
As the foundation sheet reaches the quilting machine, filler material is drawn from the supply roll 89 and laid on the stretched foundation sheet and facing sheet drawn from the roll 94 and laid on the filler layer. Neither the filler nor the facing sheet are stretched and their width is equal to the width of the foundation sheet, when stretched, between the edge margins. As the assembly of 45foundation sheet, filler and facing sheet is stitched and passes beyond the stitching needles it is drawn through the nips of the drawing rolls 29, 30 and 31, being thus freed from the pins of the chains which turn about the rear sprocket wheels 59 to the lower reach and thence to 50the front sprocket wheels. As the stitched or quilted assembly leaves the drawing rolls the tensioning is released, the assembly contracts transversely and is taken up by the take-up roil 32 (col. 6, lines 38-53).
The facing sheet is aligned on the stretched foundation sheet as claimed.
It would have been obvious to one of ordinary skill in the art before the effective filing date to align the facing sheet, first layer on the stretched foundation motivated to produce a puckered quilting structure that can stretch.
As to claim 4, Saburo teaches the quilted structure is used as a shoe upper and the first layer is the outer layer.
As to claim 5, Saburo teaches the outer layer can be leather (col. 1, lines 10-35).
As to claim 6, Saburo does not teach a reentrant shape. Saburo and Schlegel teach the stretch quilted fabric has puckered cells as shown in the figures.
Blakely teaches the stitching can be formed in reentrant shapes to form an auxetic fabric.
It would have been obvious to one of ordinary skill in the art before the effective filing date to stitch the layers in a reentrant shape motivated to produce an auxetic fabric.
As to claim 7, Saburo and Blakely teach uppers for a shoe and therefore the uppers are connected to soles.
As to claims 12 and 13, Saburo and Schlegel differ and do not teach a four-way elastic mesh. Schlegel teaches the stretchable foundation layer is a tricot knit which is equated with a mesh.
Blakely teaches the base layer can have “four way” stretch [0064] and the fabric can be elastane fabric or other compression material including elastomeric fibers [0065].
It would have been obvious to one of ordinary skill in the art before the effective filing date to employ a four way stretch base fabric motivated to produce a fabric that stretches four ways.
As to claim 14, Saburo teaches a foam cushion reinforcing layer. Schlegel teaches a fleece or fibrous reinforcing filler layer.
As to claim 18, Saburo in view of Schlegel do not teach the stitching pattern is in the form of reentrant shapes.
Blakely teaches the auxetic arrangement 14 disclosed herein may be advantageously used to form various portions of shoes because the auxetic arrangement 14 is configured to smoothly fit multiple curvatures on the wearer without the need for numerous seams or cuts in the material. The auxetic arrangement 14 may be used to form a complete shoe upper or limited portions of the shoe upper, including the heel, ankle, arch, toes and instep [0079].
It would have been obvious to one of ordinary skill in the art before the effective filing date to stitch a pattern of reentrant shapes motivated to produce a fabric with auxetic properties.
Claims 15 and 17 are rejected under 35 USC 103 being unpatentable over Saburo (JP 2429346 Y2) in view of Schlegel (US 3198149).
Regarding claim 14, Saburo teaches an article of footwear (shoe A) comprising a sole defining a length direction and a width direction of the article of footwear (see Figure 1 & [0007]) wherein said length and width directions may be defined as being perpendicular to each other. Saburo teaches that the shoe comprises an upper connected to the sole including at least one panel including a plurality of layers (1, 2, 4) that are secured together by an embroidery stitching pattern (3) (see Figures 1-2 & [0007]). Saburo teaches the layers are shell portion (1) equated with the first layer, a cushioning material (2) and the back reinforcing material (4) equated with the second layer.
Saburo differs and does not teach the method requires stretching the second layer prior to stitching.
Schlegel is directed to a machine for making stretchable quilted fabric for garments. The quilted fabric invention comprises a stretchable lower or foundation sheet, on which is superposed an upper or facing sheet and, preferably a filler sheet or layer between the foundation sheet and the facing sheet, the assembly of these sheets being stitched together by stitches spaced throughout the area of the fabric. The facing sheet and the filler layer are contracted and puffed or puckered between the stitches when the fabric is not stretched but straighten when the foundation sheet is stretched. The foundation sheet is one that stretches when a stretching force is applied and contracts when the force or stress is released. This is of advantage in giving greater freedom of movement when the fabric is used in garments, or articles of apparel, in quilting, and for various other purposes when it is desired to provide a close fitting cover for articles. The foundation or under sheet may be of the type known as "tricot." The filler layer, when, as generally is the case, a filler layer is used, may be a felted sheet of more or less closely felted fibers or it may be an unfelted layer of feathers, down, or other loosely assembled material. The stitching holds the filler layer in place between the foundation sheet and the facing sheet. The facing sheet may be of woven fabric or of a sheet of leather or other suitable material (col. 1, lines 10-35).
Schlegel is directed to a machine for making stretchable quilted fabric for garments. The quilted fabric invention comprises a stretchable lower or foundation sheet, on which is superposed an upper or facing sheet and, preferably a filler sheet or layer between the foundation sheet and the facing sheet, the assembly of these sheets being stitched together by stitches spaced throughout the area of the fabric. The facing sheet and the filler layer are contracted and puffed or puckered between the stitches when the fabric is not stretched but straighten when the foundation sheet is stretched. The foundation sheet is one that stretches when a stretching force is applied and contracts when the force or stress is released. This is of advantage in giving greater freedom of movement when the fabric is used in garments, or articles of apparel, in quilting, and for various other purposes when it is desired to provide a close fitting cover for articles.
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As to claim 15, the fabric is formed by stretching the stretchable lower sheet, stitching the sheets together and releasing the sheets to form a puckered sheet.
It would have been obvious to one of ordinary skill in the art before the effective filing date to employ the stretch quilting technique of Schlegel motivated to produce fabric that can stretch without stretching the filler material and the facing sheet to provide wind and rain resistance and increase comfort of a stretchable fabric. It would have been obvious to one of ordinary skill in the art before the effective filing date to use a known technique of Schlegel and the results of producing a fabric laminate bulges would have been predictable.
As to claim 17, Saburo and Schlegel teaches the stitching thread on the surface of the fabric.
Allowable Subject Matter
Claim 8-11 and 16 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims. The prior art is not specific with regard to the maximum elongation of the first layer in the length direction and the elongation of the second layer in the width direction.
Claims 19 and 20 are allowable over the prior art. The prior art of record fails to teach or suggest the first panel of elastic material having an elongation in the length direction that is greater than an elongation in the width direction and a second panel of an elastic material having an elongation in the width direction that is greater than an elongation in the length direction.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claim 1-4, 6, 7 and 14 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 16-18 of U.S. Patent No. US 11358367. Although the claims at issue are not identical, they are not patentably distinct from each other because both the instant application and the US Patent are directed to a method of making an auxetic fabric including the steps of stretching a first layer and securing a second layer to the stretched layer with stitching in an auxetic pattern (which is equated with a reentrant pattern).
Claims 1-4, 6, 7 and 14 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-22 of U.S. Patent No. US 11701862. Although the claims at issue are not identical, they are not patentably distinct from each other because the instant application and the US Patent are directed to a method of making an auxetic fabric including the steps of stretching a first layer and securing a second layer to the stretched layer with stitching in an auxetic pattern (which is equated with a reentrant pattern).
Claims 1-4, 6, 7 and 14 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. US 12018411. Although the claims at issue are not identical, they are not patentably distinct from each other because the instant application and the US Patent are directed to a method of making an auxetic fabric including the steps of stretching a first layer and securing a second layer to the stretched layer with stitching in an auxetic pattern (which is equated with a reentrant pattern).
Claims 15 and 17 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 18 and 19 of copending Application No. 19009525 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because both the instant invention and the copending application are directed to a method of making the upper by stretching a first layer and aligning a second layer when the first layer is in stretched state and stitching the second layer when in stretched state and when in contracted state the second layer buckles to form bulges.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Blake (US 5437239) is directed to a process for making quilted fabric.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNIFER A STEELE whose telephone number is (571)272-7115. The examiner can normally be reached 9-5:30.
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/JENNIFER A STEELE/Primary Examiner, Art Unit 1789
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