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 April 22, 2026 has been received, Claims 1-2, 4-12, and 14-18 are currently pending.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
1. Claim(s) 1-2 and 5-13 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Marvin (US 2014/0283410).
Regarding Claim 1, Marvin discloses an article of footwear comprising a vamp (212), said vamp further comprising: at least a layer of vamp material (22) with a generally W shaped top perimeter (as seen in Fig.12; the perimeter formed along 214 is W shaped from the medial to the lateral side); at least a first layer of fabric (28 adjacent 22) with a generally W shaped top perimeter (as seen in Fig.12; the perimeter formed along 214 is W shaped from the medial to the lateral side); and at least a first layer of elastic material (23) with a generally W shaped top perimeter (as seen in Fig.12; the perimeter formed along 214 is W shaped from the medial to the lateral side); wherein said first layer of fabric is secured in between said layer of vamp material and said first layer of elastic material (para.42 & 59)(as seen in Fig.12 & 15).
Regarding Claim 2, Marvin discloses an article of footwear according to claim 1, wherein at least a second layer of fabric (28 adjacent 23) is secured in between said layer of vamp material and said first layer of elastic material (para.42 & 59)(as seen in Fig.15).
Regarding Claim 5, Marvin discloses an article of footwear according to claim 1, wherein at least a second layer of fabric (28 adjacent 23) and at least a second layer of elastic material (25) are secured to said layer of vamp material in an alternating manner (para.42 & 59)(as seen in Fig.15).
Regarding Claim 6, Marvin discloses an article of footwear according to claim 1, wherein said layer of vamp material (22) is an outer layer (para.59).
Regarding Claim 7, Marvin discloses an article of footwear according to claim 1, wherein said first layer of elastic material (23) is an inner layer (para.59).
Regarding Claim 8, Marvin discloses an article of footwear comprising a vamp (212), said vamp further comprising: a layer of vamp material (22); a first layer of fabric (28 adjacent 22); a layer of elastic material (23); a second layer of fabric (28 adjacent 23); a second layer of elastic material (25) laminated to said second layer of fabric (para.42 & 59); wherein said second layer of fabric further comprises an opening (see annotated Figure below).
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Regarding Claim 9, Marvin discloses an article of footwear according to claim 8, wherein said layer of vamp material and said first layer of fabric are laminated together (para.42 & 59).
Regarding Claim 10, Marvin discloses an article of footwear according to claim 9, wherein said layer of vamp material and said second layer of fabric are laminated together (para.42 & 59).
Regarding Claim 11, Marvin discloses an article of footwear according to claim 10, wherein said layer of elastic material (23) is located under said second layer of fabric (22)(as seen in Fig.15; para.59).
Regarding Claim 12, Marvin discloses an article of footwear according to claim 11, wherein said footwear further comprises a tongue (i.e. tongue projection, as seen in Fig.12 & 20).
Regarding Claim 13, Marvin discloses an article of footwear according to claim 12, wherein said vamp further comprises a second layer of elastic material (25)(para.59).
2. Claim(s) 14 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by McAlpine (US 2004/0200095).
Regarding Claim 14, McAlpine discloses an article of footwear comprising a vamp (26), said vamp further comprising: a layer of first vamp material (42); a layer of second vamp material (38); wherein said layer of second vamp material is larger than said layer of first vamp material (as seen in Fig.2); a layer of third vamp material (54); wherein said layer of third vamp material is connected to both said layer of first vamp material and said layer of second vamp material (i.e. 42 & 38 are connected as a single layer and 54 is connected to that layer, therefore, 54 is connected to both 42 & 38 as it is connected to the overall single layer. It is further noted that this is the arrangement disclosed by Applicant, as the third layer is not directly connected to both first & second vamp materials but to the overall layer of the combined first & second vamp materials); wherein said layer of third vamp material is smaller than said layer of first vamp material (as seen in Fig.2).
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.
3. Claim(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Marvin (US 2014/0283410) in view of Chen (US 2005/0210708).
Regarding Claim 4, Marvin discloses the invention substantially as claimed above. Marvin does not disclose the layer of fabric is waterproof. However, Chen teaches a shoe vamp having an outer fabric is waterproof (11,12)(para.26).
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 outer fabric of Marvin to be a breathable-waterproof outer fabric, as taught by Chen, in order to provide an article of footwear that has enhanced ventilation for Keeping a user’s foot dry and comfortable during use.
4. Claim(s) 15-18 is/are rejected under 35 U.S.C. 103 as being unpatentable over McAlpine (US 2004/0200095) in view of Marvin (US 2014/0283410).
Regarding Claim 15 and 17-18, McAlpine discloses the invention substantially as claimed above. McAlpine does not disclose wherein said vamp further comprises a layer of fabric; wherein said vamp further comprises an elastic material placed on a bottom face of said layer of fabric and a bottom face of said layer of second vamp material; and wherein a top face of said layer of fabric is laminated to a bottom face of said layer of first vamp material. However, Marvin teaches a vamp (212) having a layer of vamp material (22); said vamp further comprises a layer of fabric (28 adjacent 22); wherein said vamp further comprises an elastic material (25) placed on a bottom face of said layer of fabric and a bottom face of said layer of vamp material (para.59); and wherein a top face of said layer of fabric is laminated to a bottom face of said layer of vamp material (para.42 & 59)(as seen in Fig.12 & 15).
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 vamp of McAlpine to include a layer of fabric and an elastic material, as taught by Marvin, in order to provide a comfortable surface against a user’s foot. When in combination, McAlpine and Marvin teach the elastic material placed on a bottom face of said layer of fabric and a bottom face of said layer of second vamp material; and wherein a top face of said layer of fabric is laminated to a bottom face of said layer of first vamp material.
Regarding Claim 16, McAlpine and Marvin disclose the invention substantially as claimed above. McAlpine and Marvin does not disclose wherein said layer of fabric is smaller than said layer of first vamp material. 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 modified the layer of Marvin’s fabric to be smaller than the first vamp material of McAlpine, in order to provide the desired fabric layering so that the shoe does not become too bulky or heavy. Further, it would have been an obvious matter of design choice to form the layer of fabric to be smaller than the first vamp material, since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. See MPEP 2144.04.
Response to Arguments
In view of Applicant's amendment, the search has been updated, and newly modified grounds of rejection have been identified and applied. Applicant's arguments have been considered but, as they are drawn solely to the newly amended limitations, are moot in view of the newly modified 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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