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filed December 8, 2025 has been received, Claims 1-9, 27-39, and 41-43 are currently pending, with Claim 44 being withdrawn from prosecution at this time.
Election/Restrictions
Newly submitted claim 44 directed to an invention that is independent or distinct from the invention originally claimed for the following reasons: Claim 44 is directed to unelected Species 6: Fig.10. Applicant’s argument that the subject matter for Claim 44 may be included in elected Species 3: Fig.6A-7 is not found persuasive as the cited paragraph states that “features of the knitted component 1030 may likewise apply to the knitted component…630”. This would appear to be referring to an entirely different Species, one that is not shown in the drawings and Species Elections are based off of the originally presented Figures.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claim 44 is withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
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) 1-9, 27-34, 36-39 and 41 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bell (US 2018/0177260) in view of Aceves (US 2019/0223541).
Regarding Claim 1, Bell discloses an article of footwear comprising a knitted component (Abstract), the knitted component comprising: a knitted base layer (140; para.23); a knitted net layer (150) integrally knitted with the knitted base layer (para.24); Bell does not disclose one or more inlaid strands extending between the knitted base layer and the knitted net layer. However, Aceves teaches footwear having a knitted component with a knitted net layer (50) and one or more inlaid strands (62,63) extending behind the knitted net layer (para.34; as seen in Fig.4).
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 knitted component of Bell to include one or more inlaid strands, as taught by Aceves, in order to provide the optimum level of stretch resistance, which enhances the support provided along a user’s foot. When in combination, Bell and Aceves teach the one or more inlaid strands extending between the knitted base layer and the knitted net layer.
Regarding Claim 2, Bell discloses an article of footwear claim 1, wherein one or more yarns forming the knitted net layer (150) form a plurality of polygon cells (160), wherein adjacent polygon cells share at least one common vertex (as seen in Fig.1-3, 5 & 6).
PNG
media_image1.png
318
536
media_image1.png
Greyscale
Regarding Claims 3 and 4, Bell discloses an article of footwear of claim 2, wherein each polygon cell (160) has a width between a first vertex and a second vertex (see annotated Figure above). Bell does not disclose wherein the width is at least a width of five wales of the knitted base layer; or wherein the width between the first vertex and the second vertex is seven wales of the knitted base layer. However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have formed the width of the polygon cell of Bell to be at least a width of five wales or seven wales, in order to provide the desired pattern to the knit component for purposes of aesthetic appearance. Further, it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. See MPEP 2144.05.
Regarding Claim 5, Bell and Aceves disclose the invention substantially as claimed above. Bell does not disclose wherein the knitted base layer comprises radially-extending courses that extend in a non-parallel orientation in at least a forefoot area of the article of footwear. However, Aceves teaches a knit upper base layer with radially-extending courses that extend in a non-parallel orientation (para.40; as seen in Fig.6).
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 forefoot area of the base layer of Bell to have radially courses that extend in a non-parallel orientation, as taught by Aceves, in order to provide a knit pattern that follows the natural curvature of a user’s foot for a more comfortable fit.
Regarding Claim 6, When in combination, Bell and Aceves teach an article of footwear of claim 2, wherein each polygon cell includes at least one inlaid strand extending across the polygon cell (Aceves: as seen in Fig.4).
Regarding Claim 7, When in combination, Bell and Aceves teach an article of footwear of claim 2, wherein each polygon cell includes at least two inlaid strands (Aceves: 62,63) spaced apart from each other (Aceves: as seen in Fig.4).
Regarding Claim 8, When in combination, Bell and Aceves teach an article of footwear of claim 7, wherein the at least two inlaid strands (Aceves: 62,63) are asymmetrically positioned within each polygon cell (Aceves: as seen in Fig.4).
Regarding Claim 9, When in combination, Bell and Aceves teach an article of footwear of claim 2, wherein each polygon cell (Bell: 160) is defined by floating sections of yarn of the knitted net layer extending between one or more vertices (Bell: as seen in Fig.1-3, 5 & 6; para.24), wherein the one or more inlaid strands (Aceves: 62,63) intersect the floating sections (Aceves: as seen in Fig.4).
Regarding Claim 27, Bell discloses a knitted component, comprising: a knitted base layer (140; para.23); a knitted net layer (150) integrally knitted with the knitted base layer (para.24). Bell does not disclose one or more inlaid strands extending between the knitted base layer and the knitted net layer. However, Aceves teaches footwear having a knitted component with a knitted net layer (50) and one or more inlaid strands (62,63) extending behind the knitted net layer (para.34; as seen in Fig.4).
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 knitted component of Bell to include one or more inlaid strands, as taught by Aceves, in order to provide the optimum level of stretch resistance, which enhances the support provided along a user’s foot. When in combination, Bell and Aceves teach the one or more inlaid strands extending between the knitted base layer and the knitted net layer.
Regarding Claim 28, Bell further discloses a knitted component of claim 27, wherein the knitted base layer comprises knit courses (para.23; i.e. knitting requires courses) and a common portion (127). Bell does not disclose radially-extending knit courses extending outward from the common portion, wherein the radially-extending knit courses extend in a non-parallel orientation and are located in at least a portion of the knitted component. However, Aceves teaches knitting courses (of 100; para.42) such that the orientation of the courses are radially-extending knit courses extending outward from a throat portion (81)(as seen in Fig.6), wherein the radially-extending knit courses extend in a non-parallel orientation and are located in at least a portion of the knitted component (para.40).
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 formed the base layer of Bell to have radially-extending knit courses extending outward from the throat portion, as taught by Aceves, in order to provide the desired pattern to the knit component for purposes of aesthetic appearance.
Regarding Claim 29, Modified Bell discloses a knitted component of claim 28, wherein the radially-extending knit courses comprise full-length knit courses (i.e. 100% of the course) and partial-length knit courses (i.e. 50% of a course)(as seen in Fig.2 of Bell & Fig.6 of Aceves).
Regarding Claim 30, Modified Bell discloses a knitted component of claim 29, wherein the full-length knit courses extends from a first edge (i.e. lower perimeter edge) of the knitted base layer to a second edge (interior edge of 127) of the knitted base layer, and wherein the partial-length knit courses comprise a first end and a second end, wherein the first end is adjacent to the first edge, and wherein the second end is positioned between the first edge and the second edge, and wherein the partial-length knit courses do not fully extend between the first edge and the second edge of the knitted base layer (Aceves: para.40, i.e. a knit gore/wedge has partial length knit courses)(as seen in Fig.2 of Bell & Fig.6 of Aceves).
Regarding Claim 31, When in combination, Bell and Aceves teach a knitted component of claim 30, wherein the one or more inlaid strands (Aceves: 62,63) extend radially along one or more of the full-length knit courses (as seen in Fig.2 of Bell and Fig.4 & 6 of Aceves).
Regarding Claim 32, Bell discloses a knitted component of claim 28, wherein one or more yarns forming the knitted net layer (150; para.24) form a plurality of polygon cells (160), wherein adjacent polygon cells share at least one common vertex (see annotated Figure above).
Regarding Claim 33, Bell discloses a knitted component of claim 32, wherein a first polygon cell (160 of 158 near 127) located closer to the common portion has a first width and a second polygon cell (160 of 152 near 116) located further from the common portion may have a second width, wherein the second width is greater than the first width (as seen in Fig.2).
Regarding Claim 34, When in combination, Bell and Aceves teach a knitted component of claim 32, wherein each polygon cell (Bell: 160) is defined by floating sections of yarn of the knitted net layer extending between one or more vertices (see annotated Figure above), wherein the one or more inlaid strands (Aceves: 62,63) intersect the floating sections (Aceves: as seen in Fig.4).
Regarding Claim 36, Bell discloses an article of footwear comprising an upper, the upper comprising: a knitted component (Abstract), comprising: a knitted base layer (140; para.23) wherein the knitted base layer comprises knit courses (para.23; i.e. knitting requires courses) extending outward from a common portion (127), wherein the common portion is located in a throat area (para.27); a knitted net layer (150; para.24) overlaying at least a part of the knitted base layer (as seen in Fig.1-2). Bell does not disclose one or more inlaid strands extending between the knitted base layer and the knitted net layer and radially-extending knit courses extending outward from the common portion. However, Aceves teaches footwear having a knitted component with a knitted net layer (50) and one or more inlaid strands (62,63) extending behind the knitted net layer (para.34; as seen in Fig.4); and knitting courses (of 100; para.42) such that the orientation of the courses are radially-extending knit courses extending outward from a throat portion (81)(as seen in Fig.6).
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 knitted component of Bell to include one or more inlaid strands, as taught by Aceves, in order to provide the optimum level of stretch resistance, which enhances the support provided along a user’s foot. When in combination, Bell and Aceves teach the one or more inlaid strands extending between the knitted base layer and the knitted net layer. Additionally, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have formed the base layer of Bell to have radially-extending knit courses extending outward from the throat portion, as taught by Aceves, in order to provide the desired pattern to the knit component for purposes of aesthetic appearance.
Regarding Claim 37, Bell discloses an article of footwear of claim 36, wherein the knitted net layer is joined to the knitted base layer through stitching and/or bonding (para.24, “the second layer 150 and the base layer 140 are formed together as an integral one-piece element…and may be formed by a single knitting process on a knitting machine”).
Regarding Claim 38, Bell discloses an article of footwear of claim 36, wherein one or more yarns forming the knitted net layer (150) form a plurality of polygon cells (160), wherein adjacent polygon cells of the plurality of polygon cells share at least one common vertex (as seen in Fig.1-3, 5 & 6).
Regarding Claim 39, Bell discloses an article of footwear of claim 38, wherein a first polygon cell (160 of 158 near 127) of the plurality of polygon cells is located closer to the common portion and has a first width, and a second polygon cell (160 of 152 near 116) of the plurality of polygon cells is located further from the common portion (127), closer to an outer perimeter (116), may have a second width, wherein the second width is greater than the first width (as seen in Fig.2).
Regarding Claim 41, Modified Bell discloses an article of footwear of claim 36, wherein the one or more inlaid strands (Aceves: 62,63) extend radially along the radially-extending knit courses (as seen in Fig.2 of Bell and Fig.4 & 6 of Aceves), such that the radially-extending knit courses extend in a non-parallel orientation in at least a forefoot region of the article of footwear (Aceves: para.40, “gores or wedges may be utilized to adjust the orientation of any knit-in tensile area”). When in combination, Bell and Aceves teach the one or more inlaid strands extend in a non-parallel orientation in at least a forefoot region of the article of footwear (i.e. as the inlaid strands would follow the course direction).
2. Claim(s) 35 and 42-43 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bell (US 2018/0177260) and Aceves (US 2019/0223541) in view of Dua (US 2012/0279260).
Regarding Claim 35, Bell and Aceves disclose the invention substantially as claimed above. Bell further discloses wherein the knitted net layer is joined to the knitted base layer (para.24). Bell does not disclose wherein the knitted net layer is joined to the knitted base layer at least by fusing of a thermoplastic material. However, Dua teaches joining knit layers (110,120) by fusing of a thermoplastic material (para.23-25).
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 secured the knit layers of Bell by fusing of a thermoplastic material, as taught by Dua, in order to provide an attachment between the knit layers that is durable an abrasion resistant.
Regarding Claim 42, Bell and Aceves disclose the invention substantially as claimed above. Modified Bell does not disclose wherein the one or more inlaid strands each comprise a sheath of a low-melting material surrounding a core comprising a material having a higher melting temperature than the low-melting material. However, Dua teaches a knit component having a strand (117) comprising a sheath (118) of a low-melting material surrounding a core (119) comprising a material having a higher melting temperature than the low-melting material (para.31; as seen in Fig.6A).
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 substituted the inlaid strand material of modified Bell with a sheath-core strand material as taught by Dua, as a simple substitution of one well known type of strand used in knit footwear for another, in order to yield the predictable result of providing a strand for knitting a shoe upper. Further, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. See MPEP 2144.07.
Regarding Claim 43, Bell and Aceves disclose the invention substantially as claimed above. Modified Bell does not disclose wherein the one or more inlaid strands each comprise a low-melting material having a lower melting temperature than yarns forming the knitted net layer. However, Dua teaches a knit component having a strand (114) comprising a low-melting material (para.22-23) having a lower melting temperature than yarns (113) forming a knitted net layer (112)(Fig.4B; para.22-23).
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 formed the knitted component of modified Bell with low-melting material inlaid strands having a lower melting temperature than yarns forming the knitted net layer, as taught by Dua, in order to provide a durable knit shoe upper. Further, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. See MPEP 2144.07.
Response to Arguments
Applicant's arguments filed December 8, 2025 have been fully considered but they are not persuasive.
Applicant’s Remarks: Applicant asserts the Office relies on improper hindsight reasoning to formulate the current rejection; when one reference describes multiple techniques to achieve the very principle the Office alleges as the reason to combine, turning to a secondary reference for this principle is not obvious—it is restructuring the claimed invention with hindsight reasoning. The Office alleges it would have been obvious to combine “the knitted component of Bell to include one or more inlaid strands, as taught by Aceves” to “provide the optimum level of stretch resistance, which enhances the support provided along a user’s foot.” However, a person having ordinary skill in the art would not, based upon the description of Bell as a whole, be motivated to form the combination relied on by the Office. Bell describes a base layer and a second layer, where the second layer “may be relatively inelastic to provide the upper with structural integrity and durability either throughout the entirety of the upper or at select locations” and “with multiple zones, where a base layer has multiple regions having different elasticities.” Therefore, it is clear that Bell describes techniques to modify the elasticity in different regions of the upper, and the Office’s conclusory reasoning for combining Bell with Aceves to “provide optimal stretch resistance,” is therefore flawed because a person of ordinary skill in the art would not have been motivated to look to the content of Aceves. Applicant further argues the Office relies on a conclusory analysis and statement to reject elements in the pending claims that are distinguishable from the presently cited combination of references. The Office alleges it would have been obvious to combine “the knitted component of Bell to include one or more inlaid strands, as taught by Aceves” to “provide the optimum level of stretch resistance, which enhances the support provided along a user’s foot.” Further, the Office alleges this combination allegedly teaches “the one or more inlaid strands extending between the knitted base layer and the knitted net layer.” This rejection relies on impermissible hindsight and recites a generic, unsupported, and conclusory rationale in an after-the-fact attempt to rationalize the combination of discrete portions of the cited references. Instead, the Office recites a generic rationale that could apply to any combination of references in this technical space and thus provides a conclusory rationale for this combination of elements that is unsupported by the cited portions of the cited references.
Examiner’s Response: Examiner respectfully disagrees. In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). Both Bell and Aceves are drawn to shoe uppers with knitted net layers that have various areas with different elasticities, Aceves having the further attribute of inlaid strands. A person of ordinary skill in the art would have been motivated to look to Aceves for the inlaid strands as both prior arts teach similar shoe upper construction as far as a base layer and knitted net layer, adding the inlaid strands of Aceves to Bell is a clearly obvious and attainable modification. Therefore, the modification takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made and does not include knowledge gleaned only from the applicant's disclosure. Applicant further argues the Office recites a generic rationale that could apply to any combination of references in this technical space and thus provides a conclusory rationale for this combination of elements that is unsupported by the cited portions of the cited references. This argument is not found persuasive as the Office did not provide a conclusory rationale for the combination of references. The Office articulated reasoning with a rational underpinning on Pg.3, 6 & 9 of the Non-Final Rejection filed 09/08/2025 which is fully supported by Aceves in Para.34, and supports the legal conclusion of obviousness. Further, simply because the rationale could apply to other combinations of references in the technical space does not invalidate the legitimacy of the current motivation to combine the references in the instant case. The Office has clearly established a Prima Facie case of obviousness. For all of these reasons, Applicant’s arguments are not found persuasive.
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.
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, 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.
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.
/MEGAN E LYNCH/Primary Examiner, Art Unit 3732