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 .
Response to Amendment
Applicant’s Amendments, filed 4/21/2026, to claims 1, 4, 8-9, 16 acknowledged by Examiner. Additionally, applicant cancelled claims 6-7, 11, 19, and added claims 20-24.
Claims 1-5, 8-10, 12-18, 20-24 are now pending.
Previous drawing objections withdrawn.
Previous claim objections withdrawn.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Examiner’s Notes
All references relied up on and not cited in the current Form 892 may be found in previous 892's or IDS'.
Drawings
The drawings were received on 4/21/2026. These drawings are acceptable.
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.
Claim(s) 1-2, 4-5, 8-10, 20-23 is/are rejected under 35 U.S.C. 103 as being unpatentable over Herbst (US 5876364 A) in view of Lamont (US 5797862 A).
Regarding claim 1, Herbst discloses a protective boot for shielding and promoting the healing of a foot of a user (Fig. 1-5, Abstract, title, protective boot 10 for shielding and healing a foot), the protective boot (Fig. 1-5, boot 10) comprising:
an insert including (Fig. 1-5 and Col. 3 lines 37-55, soft yieldable material within the surface covering is an inserted material therein for forming the cushioned shape of the boot, thus being an insert):
a first ankle portion including a first ankle indentation configured to accommodate a medial malleolus of a user with a pressure-relieving clearance while covering and protecting the medial malleolus when the protective boot is worn (Fig. 1-5, each side of the boot shape formed by the cushioning material has an ankle portion 16, right side portion 16 being a first ankle portion therein, forming an indentation 18 being a hole formed therein, Col. 3 lines 12-27, ankle portion 16 and indentation 18 accommodates the ankle bone of the wearer being the malleolus, has pressure-relieving clearance being a cut-out not contacting the ankle bone, and due to the configuration is built to ensure the ankle bone receives no contact to a bed surface/abrasive surface in the surroundings and thus is covered and protected by the cushioning/insert shape therein);
a second ankle portion including a second ankle indentation configured to accommodate a lateral malleolus of the user with a pressure-relieving clearance while covering and protecting the lateral malleolus when the protective boot is worn (Fig. 1-5, each side of the boot shape formed by the cushioning material has an ankle portion 17, left side portion 17 being a second ankle portion 17 therein, forming an indentation 18 being a hole formed therein, Col. 3 lines 12-27, ankle portion 17 and indentation 18 accommodates the ankle bone of the wearer being the malleolus, has pressure-relieving clearance being a cut-out not contacting the ankle bone, and due to the configuration is built to ensure the ankle bone receives no contact to a bed surface/abrasive surface in the surroundings and thus is covered and protected by the cushioning/insert shape therein); and
a plantar portion including a heel indentation, the heel indentation configured to accommodate a heel of the user with a pressure-relieving clearance when the protective boot is worn (Fig. 1-5 and Col. 3 lines 29-36, plantar portion 20 including a heel indentation 26 being a hole therein, built to accommodate a heel and freely support the heel without pressure thus being a pressure-relieving clearance); and
a cover conforming to and enclosing the insert (Fig. 1-5 and Col. 3 lines 37-55, there is a surface covering containing the soft yieldable material being the “insert”, thus a covering conforming and enclosing the insert),
the cover including: a fastener assembly for securing the protective boot around the foot of the user (Fig. 1-5, fastening assembly of straps 30-34 for securing the boot).
Herbst does not disclose the cover including an opening shaped to receive the insert
However, Lamont teaches an analogous protective foot boot (title, Fig. 1-15) having an analogous covering holding an insertable yieldable material for cushioning a foot (Col. 6 lines 30-42, fluid cushion pouch 156 in a cushion covering therein), wherein the covering may comprise a zipper handle for creating an opening for accessing the interior of the covering and thus shaped to remove the insert pouch 156 (Col. 6 lines 24-42).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to have provided an zipper opening for accessing the insert/yieldable material to the covering of Herbst in order to be able to clean the cushion cover without damaging the cushioning material (Lamont Col. 6 lines 24-42).
Regarding claim 2, Herbst in view of Lamont discloses the invention of claim 1 above.
Herbst does not disclose the insert is formed from a solid gel or gel-like flexible material.
Herbst does provide the soft yieldable material being the insert may comprise cotton, wool, synthetic material as pads, mats, battings, synthetic foam for being lightweight.
However, Lamont further teaches an analogous cushioning material may be in the form of a solid gel/gel-like flexible material (Col. 2 lines 55-67, gel cushion being flexible and gel is gel-like; also, the gel is cushion able to be rested on by a weight of the user thus is solid).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to have provided the insert/yieldable cushioning material of Herbst to be a solid gel or gel-like flexible material as taught by Lamont for providing improved cushioning to the heel and that is able to be removed to make the boot more lightweight during ambulation (Lamont Col. 2 lines 55-67).
Regarding claim 4, Herbst in view of Lamont discloses the invention of claim 1 above.
Herbst further discloses a plurality of perforations formed completely through a thickness of the insert at the first ankle indentation and at the second ankle indentation (Fig. 1-5, the first and second ankle indentations 18 each comprise a through hole being a perforation at each side extending entirely/completely through the thickness of the insert/cushioning material therein, thus there is an overall plurality of perforations formed at the first/second indentations).
Regarding claim 5, Herbst in view of Lamont discloses the invention of claim 1 above.
Herbst further discloses wherein the insert has a unitary structure (Col. 3 lines 36-55, the covering may be a one-piece casing such that Herbst inherently provided for the inner material/insert to be unitary as well).
Regarding claim 8, Herbst in view of Lamont discloses the invention of claim 1 above.
Herbst further discloses wherein, when unworn, the insert has a substantially planar shape (Dictionary.com [https://www.dictionary.com/browse/planar] provides “planar” to mean “flat or level”; wherein as seen in Herbst Fig. 2 the boot is of substantially level shape when unworn);
wherein the cover includes a first ankle cover portion corresponding to the first ankle portion of the insert (Fig. 1-5, the surface covering of the invention is also present at the first ankle portion 16 of the insert for forming a first ankle cover portion at one side),
a second ankle cover portion corresponding to the second ankle portion of the insert (Fig. 1-5, the surface covering of the invention is also present at the second ankle portions 17 of the insert for forming a second ankle cover portion at another side), and
a plantar cover portion corresponding to the plantar portion of the insert (Fig. 1-5, the surface covering of the invention is also present at the plantar portion 20 of the insert for forming a plantar cover portion covering the insert at the plantar portion therein), and
wherein the fastener assembly (Fig. 3, 30-35) includes
an ankle fastener configured to extend between the first ankle cover portion (16) and the second ankle cover portion (17) (Fig. 3, strap 32 is an ankle fastener that extends between the side walls 16/17 being first/second ankle cover portions corresponding with portion 18),
such that, when the protective boot is worn by the user and the ankle fastener is engaged, the first ankle portion and the second ankle portion of the insert are configured to fold upright and forwardly to conform to the ankle of the user (Fig. 4, the sidewalls 16/17 being folded upright and forwardly to conform with the leg/ankle of the user, Fig. 4, shows folding at a diagonal degree from the backwall 15 to the sidewalls 16/17).
Regarding claim 9, Herbst in view of Lamont discloses the invention of claim 8 above.
Herbst further discloses at least one fold crease formed into the insert between the first ankle portion and the second ankle portion (See Annotated Fig. 4, wherein there are two fold creases indicted between the first and second ankle portions 16/17, creases as indicated can be further seen in Fig. 1, wherein the sidewalls are being pushed upright and forward therein)
PNG
media_image1.png
651
546
media_image1.png
Greyscale
Regarding claim 10, Herbst in view of Lamont discloses the invention of claim 8 above.
Herbst further discloses wherein the fastener assembly further includes a plantar fastener configured such that, when the protective boot is worn by the user, the plantar fastener extends across an instep of the user (Fig. 2-3, strap 33 is a plantar fastener that is configured to extend across an instep therein).
Regarding claim 20, Herbst discloses a protective boot for shielding and promoting the healing of a foot of a user (Fig. 1-5, Abstract, title, protective boot 10 for shielding and healing a foot), the protective boot (Fig. 1-5, boot 10) comprising:
an insert including (Fig. 1-5 and Col. 3 lines 37-55, soft yieldable material within the surface covering is an inserted material therein for forming the cushioned shape of the boot, thus being an insert):
a first ankle portion including a first ankle indentation configured to accommodate a medial malleolus of a user with a pressure-relieving clearance while covering and protecting the medial malleolus when the protective boot is worn (Fig. 1-5, each side of the boot shape formed by the cushioning material has an ankle portion 16, right side portion 16 being a first ankle portion therein, forming an indentation 18 being a hole formed therein, Col. 3 lines 12-27, ankle portion 16 and indentation 18 accommodates the ankle bone of the wearer being the malleolus, has pressure-relieving clearance being a cut-out not contacting the ankle bone, and due to the configuration is built to ensure the ankle bone receives no contact to a bed surface/abrasive surface in the surroundings and thus is covered and protected by the cushioning/insert shape therein);
a second ankle portion including a second ankle indentation configured to accommodate a lateral malleolus of the user with a pressure-relieving clearance while covering and protecting the lateral malleolus when the protective boot is worn (Fig. 1-5, each side of the boot shape formed by the cushioning material has an ankle portion 17, left side portion 17 being a second ankle portion 17 therein, forming an indentation 18 being a hole formed therein, Col. 3 lines 12-27, ankle portion 17 and indentation 18 accommodates the ankle bone of the wearer being the malleolus, has pressure-relieving clearance being a cut-out not contacting the ankle bone, and due to the configuration is built to ensure the ankle bone receives no contact to a bed surface/abrasive surface in the surroundings and thus is covered and protected by the cushioning/insert shape therein); and
a plantar portion including a heel indentation, the heel indentation configured to accommodate a heel of the user with a pressure-relieving clearance when the protective boot is worn (Fig. 1-5 and Col. 3 lines 29-36, plantar portion 20 including a heel indentation 26 being a hole therein, built to accommodate a heel and freely support the heel without pressure thus being a pressure-relieving clearance); and
an Achilles support region extending from the heel indentation upward and inward between the first ankle portion and the second ankle portion (Fig. 3-5 and Col. 4 lines 16-29, there is a packet 41 with beads 40 to be placed as part of the insert/inner material at the achilles region, shown extending upwardly away from the heel indentation 26 and between the first and second ankle portions 16/17, Fig. 5 also shows it extends inwardly therein, the beads capable functioning as an achilles region support);
a cover conforming to and enclosing the insert (Fig. 1-5 and Col. 3 lines 37-55, there is a surface covering containing the soft yieldable material being the “insert”, thus a covering conforming and enclosing the insert),
the cover including: a fastener assembly for securing the protective boot around the foot of the user (Fig. 1-5, fastening assembly of straps 30-34 for securing the boot).
Herbst does not disclose the cover including an opening shaped to receive the insert
However, Lamont teaches an analogous protective foot boot (title, Fig. 1-15) having an analogous covering holding an insertable yieldable material for cushioning a foot (Col. 6 lines 30-42, fluid cushion pouch 156 in a cushion covering therein), wherein the covering may comprise a zipper handle for creating an opening for accessing the interior of the covering and thus shaped to remove the insert pouch 156 (Col. 6 lines 24-42).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to have provided an zipper opening for accessing the insert/yieldable material to the covering of Herbst in order to be able to clean the cushion cover without damaging the cushioning material (Lamont Col. 6 lines 24-42).
Regarding claim 21, Herbst in view of Lamont discloses the invention of claim 20 above.
Herbst further discloses wherein, when unworn, the insert has a substantially planar shape (Dictionary.com [https://www.dictionary.com/browse/planar] provides “planar” to mean “flat or level”; wherein as seen in Herbst Fig. 2 the boot is of substantially level shape when unworn);
wherein the cover includes a first ankle cover portion corresponding to the first ankle portion of the insert (Fig. 1-5, the surface covering of the invention is also present at the first ankle portion 16 of the insert for forming a first ankle cover portion at one side),
a second ankle cover portion corresponding to the second ankle portion of the insert (Fig. 1-5, the surface covering of the invention is also present at the second ankle portions 17 of the insert for forming a second ankle cover portion at another side), and
a plantar cover portion corresponding to the plantar portion of the insert (Fig. 1-5, the surface covering of the invention is also present at the plantar portion 20 of the insert for forming a plantar cover portion covering the insert at the plantar portion therein), and
wherein the fastener assembly (Fig. 3, 30-35) includes
an ankle fastener configured to extend between the first ankle cover portion (16) and the second ankle cover portion (17) (Fig. 3, strap 32 is an ankle fastener that extends between the side walls 16/17 being first/second ankle cover portions corresponding with portion 18),
such that, when the protective boot is worn by the user and the ankle fastener is engaged, the first ankle portion and the second ankle portion of the insert are configured to fold upright and forwardly to conform to the ankle of the user (Fig. 4, the sidewalls 16/17 being folded upright and forwardly to conform with the leg/ankle of the user, Fig. 4, shows folding at a diagonal degree from the backwall 15 to the sidewalls 16/17).
Regarding claim 22, Herbst in view of Lamont discloses the invention of claim 21 above.
Herbst further discloses fold creases formed into the insert between the Achilles support region and the first and second ankle portions (See Annotated Fig. 4, wherein there are two fold creases indicted between the first and second ankle portions 16/17, creases as indicated can be further seen in Fig. 1, wherein the sidewalls are being pushed upright and forward therein, the creases are placed between each of the sidewalls/ankle portions and the Achilles support region 41).
Regarding claim 23, Herbst in view of Lamont discloses the invention of claim 21 above.
Herbst further discloses wherein the heel indentation 26 further comprises a heel hole extending through a thickness of the insert (Fig. 1-5, heel indentation is and thus comprises a heel hole extending through the entire thickness of the invention and thus the insert/inner material therein).
Claim(s) 2-3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Herbst (US 5876364 A) in view of Lamont (US 5797862 A) in view of Iglesias (US 20160302957 A1).
Regarding claim 2, Herbst in view of Lamont discloses the invention of claim 1 above.
Herbst does not disclose the insert is formed from a solid gel or gel-like flexible material.
Herbst does provide the soft yieldable material being the insert may comprise cotton, wool, synthetic material as pads, mats, battings, synthetic foam for being lightweight.
However, Iglesias teaches an analogous boot (Abstract, Figure 5) having an analogous boot cushioning material be solid gel or gel-like flexible material (gel silicone rubber; [0112] “In some aspects of the walking boot, the first material may be a gel or silicone such as RK Rubber Silicone”, provides shock absorption being analogous to cushioning) for improved shock absorption, strength, and abrasion resistance ([0112]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to have chosen the yieldable material/insert to be the gel silicone rubber of Iglesias in order to provide improved properties of shock absorption, strength, and abrasion resistance for a boot/foot device (Iglesias[0012]) (thus being a solid gel or gel-like flexible material).
Regarding claim 3, Herbst in view of Lamont discloses the invention of claim 1 above.
Herbst in view of Lamont does not disclose the insert is formed from a silicone rubber gel.
Herbst does provide the soft yieldable material being the insert may comprise cotton, wool, synthetic material as pads, mats, battings, synthetic foam for being lightweight.
However, Iglesias teaches an analogous boot (Abstract, Figure 5) having an analogous boot cushioning material that may be silicone rubber gel (gel silicone rubber; [0112] “In some aspects of the walking boot, the first material may be a gel or silicone such as RK Rubber Silicone”, shock absorption analogous cushioning) for improved shock absorption, strength, and abrasion resistance ([0012]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to have chosen the yieldable material/insert of Herbst to be the silicone rubber gel of Iglesias in order to provide improved properties of shock absorption, strength, and abrasion resistance for a boot/foot device (Iglesias [0012]) (thus being a solid gel or gel-like flexible material).
Claim(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Herbst (US 5876364 A) in view of Lamont (US 5797862 A) in view of Richardson (US 2592739 A).
Regarding claim 4, Herbst in view of Lamont discloses the invention of claim 1 above.
Herbst/Lamon is silent on a plurality of perforations formed completely through a thickness of the insert at the first ankle indentation and at the second ankle indentation (alternate interpretation).
However, Richardson teaches an analogous ankle device/insert (Fig. 1-7) comprising numerous perforations 12 extending entirely through the thickness therein for providing sufficient ventilation (Col. 3 lines 7-15), see Fig. 1-7 wherein the ventilation perforations 12 are placed at areas near the lateral/medial ankle bone being analogous ankle indentations therein.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to have provided the plurality of perforations 12 as taught by Richardson to the first and second ankle portions near the ankle bone thus being at the ankle indentations through the thickness of the invention in order to provide improved ventilation (Richardson Col. 3 lines 7-15).
Claim(s) 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Herbst (US 5876364 A) in view of Lamont (US 5797862 A) in view of Miller (US 5853380 A).
Regarding claim 5, Herbst in view of Lamont discloses the invention of claim 1 above.
Herbst does not explicitly disclose wherein the insert has a unitary structure.
However, Miller teaches an analogous ankle orthotic/boot (Fig. 1-12) comprising an analogous covering (Col. 4 lines 55-64, inner and outer layers 15/13) holding an analogous insert (Col. 4 lines 55-64, stay 31 being an insert), wherein Miller teaches that an ankle insert may be provided optionally as either a unitary piece or multiple piece construction (Col. 4 lines 64-67).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to have provided the insert/yieldable material of Herbst to be unitary as taught by Miller as a matter of design choice for an insert and the MPEP provides that making unitary/one-piece is merely an obvious engineering choice (MPEP 2144.V.B, In re Larson, 340 F.2d 965, 968, 144 USPQ 347, 349 (CCPA 1965) (A claim to a fluid transporting vehicle was rejected as obvious over a prior art reference which differed from the prior art in claiming a brake drum integral with a clamping means, whereas the brake disc and clamp of the prior art comprise several parts rigidly secured together as a single unit. The court affirmed the rejection holding, among other reasons, "that the use of a one-piece construction instead of the structure disclosed in [the prior art] would be merely a matter of obvious engineering choice."))
Claim(s) 12-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Herbst (US 5876364 A) in view of Lamont (US 5797862 A) in view of McCormick (US 20030233062 A1).
Regarding claim 12-13, Herbst in view of Lamont discloses the invention of claim 1 above.
Herbst in view of Lamont is silent on wherein the cover is formed from a moisture-wicking material, and wherein the moisture-wicking material is one of polyester, polypropylene, nylon, micromodal rayon, and bamboo.
However, McCormick teaches an AFO (title, ankle brace) comprising an analogous insert (stays 15 being inserts into the AFO; Figures 1-5, [0006, 0032], analogous in also being durable material that match with the first and second ankle portions of Brown for being capable of providing support structure to the sides of an ankle when worn by a user) and a cover 10 (ankle brace 10) conforming to and enclosing the insert 15 ([0032] stays 15 enclosed in pockets of the cover 10), the cover 10 including: an opening (pockets) shaped to receive the insert 15 ([0032] stays 15 go into formed pockets, wherein pockets are an opening of space thus being shaped to receive the insert 15), wherein the cover may be from a moisture-wicking material (see [0030]), and wherein the moisture-wicking material is one of polyester, polypropylene, nylon, micromodal rayon, and bamboo (see [0035] polyester material with moisture wicking properties).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to have modified the surface covering of Herbst to be moisture-wicking polyester as taught by McCormick in order to wick moisture away from the user’s foot when wearing the ankle boot and reduce skin irritation (McCormick [0009, 0030])
Regarding claim 14-15, Herbst in view of Lamont discloses the invention of claim 1 above.
Herbst in view of Lamont is silent on wherein the cover is formed from a quick-drying material, wherein the quick-drying material is one of polyester and a polyester-cotton blend.
However, McCormick teaches an AFO (title, ankle brace) comprising an analogous insert (stays 15 being inserts into the AFO; Figures 1-5, [0006, 0032], analogous in also being durable material that match with the first and second ankle portions of Brown for being capable of providing support structure to the sides of an ankle when worn by a user) and a cover 10 (ankle brace 10) conforming to and enclosing the insert 15 ([0032] stays 15 enclosed in pockets of the cover 10), the cover 10 including: an opening (pockets) shaped to receive the insert 15 ([0032] stays 15 go into formed pockets, wherein pockets are an opening of space thus being shaped to receive the insert 15), wherein the cover is formed from a quick-drying material, wherein the quick-drying material is one of polyester and a polyester-cotton blend ([0035] cover is formed from polyester, further See MPEP 2112.01(I) which states “when the structure recited in the reference is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent”, as such as polyester in the claim is provided to have qualities of being quick-drying material, McCormick teaching polyester material for the cover also further inherently provides for the property of “quick-drying”).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to have formed the covering of Herbst to be polyester with the inherent features of quick-drying as taught by McCormick as polyester also provides for moisture wicking properties for keeping the user’s foot dry thus improving long term usage of the device (McCormick [0035]).
Claim(s) 16-18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Herbst (US 5876364 A) in view of Lamont (US 5797862 A) in view of Grundmann (US 20240366411 A1).
Regarding claim 16, Herbst in view of Lamont discloses the invention of claim 1 above.
Herbst/Lamont does not disclose an Achilles support protrusion extending from the heel indentation upward and inward between the first ankle portion and the second ankle portion and having a curved shaped configured to conform to an Achilles tendon of the user.
However, Grundmann teaches an Achilles support protrusion 1 (Figures 1A-5, Abstract) located extending away from the heel of the user and upward and inward therein (Fig. 5, extends upwards/inwards along the heel/leg, and the nubs 40 extend inward toward the leg) when in use and between the lateral and medial sides of the ankle (Figures 3-5), and having a curved shaped configured to conform to an Achilles tendon of the user (Fig. 1-5, shape is curved and conforms to an achilles tendon region of the user), wherein the Achilles support protrusion may be used with a foot orthotic and provides healing for an Achilles of a user (see [0058-0060]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to have provided the Achilles support protrusion 1 as taught by Grundmann to be in use with the insert/inner material of Herbst/Lamont in order to improve the foot healing device of Herbst/Lamont by further aiding the healing of Achilles tendon injury or disorder (Grundmann [0060]), wherein one of ordinary skill in the art would recognize that using the devices of Grundmann and Herbst together, would result in the Achilles tendon protrusion 1 extending away from the heel indentation of Brown and be between the first and second ankle portions.
Regarding claim 17, Herbst/Lamont/Grundmann discloses the invention of claim 16 above.
Herbst/Lamont/Grundmann does not disclose the Achilles support protrusion is integrally formed with the insert.
However, Grundmann teaches the Achilles support protrusion may be made integral with an orthosis (Grundmann [0057]) and the MPEP provides that making integral is merely an obvious engineering choice (MPEP 2144.V.B, In re Larson, 340 F.2d 965, 968, 144 USPQ 347, 349 (CCPA 1965) (A claim to a fluid transporting vehicle was rejected as obvious over a prior art reference which differed from the prior art in claiming a brake drum integral with a clamping means, whereas the brake disc and clamp of the prior art comprise several parts rigidly secured together as a single unit. The court affirmed the rejection holding, among other reasons, "that the use of a one-piece construction instead of the structure disclosed in [the prior art] would be merely a matter of obvious engineering choice.")), wherein the instant application lacks any criticality towards the Achilles support protrusion being integral with the insert, as the instant application provides multiple alternative non-integral choices of construction (Instant App Para [0051]). Also, Examiner further notes that the invention of Grundmann is titled a “pad”, and Herbst notes the inner material being the insert may be/include pads (Herbst Col. 3 lines 45-50).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to have made the Achilles support protrusion 1 of the pad of Grundmann integral with the insert/internal yieldable material/pads of Herbst as a matter of obvious engineering and design choice, wherein Grundmann provides being made integral with an orthosis (Grundmann [0057]).
Regarding claim 18, Herbst/Lamont/Grundmann discloses the invention of claim 16 above.
Grundmann further teaches wherein the Achilles support protrusion 1 includes a plurality of perforations 20 (Figure 2 and [0071]) formed completely through a thickness thereof (see [0040-0043, 0071] a plurality of perforations are provided completely through a thickness of device/support protrusion 1).
Claim(s) 24 is/are rejected under 35 U.S.C. 103 as being unpatentable over Herbst (US 5876364 A) in view of Lamont (US 5797862 A) in view of Drennan (US 10334905 B2).
Regarding claim 24, Herbst in view of Lamont discloses the invention of claim 20 above.
Herbst/Lamont does not disclose wherein the heel indentation further comprises a pocket structure configured to cover and protect the heel of the user when the protective boot is worn.
However, Drennan teaches an analogous protective boot (title, Fig. 1-3) comprising an analogous heel indentation 30 (Fig. 1-3, Col. 6 lines 37-47, heel through-hole 30 is an indentation therein, for relieving pressure from a heel analogously) wherein there is a pocket structure configured to cover and protect the heel of the user when the protective boot is worn (Fig. 1-3, pocket structure 20 covers the through-hole 30 thus cover and protecting the heel from contacting anything on the underside, Col. 8 lines 46-67).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to have modified the heel indentation 26 of Herbst to further comprise a pocket structure configured to cover and protect the heel of the user when the protective boot is worn as taught by Drennan in order to ensure nothing may harm the user’s heel when in use (Drennan Fig. 1-3 and Col. 6 lines 37-47 and Col. 8 lines 46-67).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
US 5135473 A – achilles protrusion
US 4369588 A – heel pocket
US 20080208094 A1 – foldable AFO
US 1812149 A – ankle brace with ankle bone and heel openings
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 KEVIN S ALBERS whose telephone number is (571)272-0139. The examiner can normally be reached Monday-Friday 7:30 am to 5:00 pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Rachael Bredefeld can be reached at (571) 270-5237. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/KEVIN S ALBERS/Patent Examiner, Art Unit 3786
/RACHAEL E BREDEFELD/Supervisory Patent Examiner, Art Unit 3786
Prosecution Insights