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 .
Election/Restrictions
Applicant’s election without traverse of Species 4: Fig.14D in the reply filed on October 8, 2025 is acknowledged.
After a full review of Applicant’s disclosure, Claim 3 is withdrawn as Claim 1 recites “said first layer of fabric is secured in between said layer of vamp material and said first layer of elastic material” and Claim 3 recites “said layer of vamp material is secured in between said first layer of fabric and said first layer of elastic material”. These two limitations cannot co-exist. Therefore, Claim 3 is withdrawn as it is drawn to a non-elected embodiment, the arrangement in Claim 3 is not present in the elected Species 4: in Fig.14D.
Drawings
1. The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the “wherein said layer of second vamp material is larger than said layer of first vamp material…wherein said layer of third vamp material is smaller than said layer of first vamp material” in Claim 14 and “wherein a top face of said layer of third vamp material is secured to said bottom face of said layer of second vamp material” in Claim 19 and “must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
2. Claims 19-20 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 19 recites “wherein a top face of said layer of third vamp material is secured to said bottom face of said layer of second vamp material”. The claim limitation is indefinite as it is unclear how the third vamp material is secured to the second vamp material, when Claim 14 previously recites “wherein said layer of second vamp material is larger than said layer of first vamp material…wherein said layer of third vamp material is smaller than said layer of first vamp material”. After a full review of Applicant’s disclosure it appears the third vamp material is secured to the bottom face of the FIRST vamp material, not the second vamp material; as best seen in Applicant’s Fig.2. Claim 19 is rejected as best understood by examiner.
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.
3. 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); at least a first layer of fabric (28 adjacent 22); and at least a first layer of elastic material (23); 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); 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).
4. 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 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.
5. 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.
6. Claim(s) 15-20 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.
Regarding Claim 19, McAlpine discloses an article of footwear according to claim 18, wherein a top face of said layer of third vamp material (54) is secured to said bottom face of said layer of second/first vamp material (42), and a portion of a top face of said layer of second vamp material (38) is placed under said bottom face of said layer of first vamp material (para.20, 23 & 25).
Regarding Claim 20, Modified McAlpine discloses an article of footwear according to claim 19, wherein said layer of first vamp material, said layer of second vamp material, said layer of third vamp material, and said layer of elastic material are all stitched together (para.23 & 25).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
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