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 of Species B (Figs. 1 & 9-14) in the reply filed on 11 May 2026 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Accordingly, claims 1-20 are pending in the application and an action on the merits follows.
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.
Claim(s) 1-4, 6, and 8-12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Stockbridge US 20200281314 in view of Archer US 20210277199.
Regarding Independent Claim 1, Stockbridge discloses a footwear construction (Figs. 1-5 #100/110) comprising: a midsole (Figs. 1-5 #200/210/220/258) comprising a cured product of a pre-expanded midsole (Figs. 2A-5 #200) comprising a first polymeric composition (Figs. 2A-3B #200/210; Abstract; ¶0003, 0067, 0096, 0153) comprising ethylene vinyl acetate (¶0003) and a colorant (¶0078 notes, “Dyes and colorant may be used for aesthetic purposes or to alter physical properties of the product, such as to repel light”) and having a first density (¶0003, 0005, 0009, 0120, 0136), and a second polymeric composition (Figs. 3C-3D #220/258; Abstract; ¶0003, 0067, 0096, 060) comprising ethylene vinyl acetate (¶0003) and a colorant (¶0078 notes, “Dyes and colorant may be used for aesthetic purposes or to alter physical properties of the product, such as to repel light”) and having a second density (¶0003, 0005, 0009, 0120, 0136), the pre-expanded midsole having been expanded in the presence of a supercritical fluid (¶0007-0008, 0116-0130), the midsole further comprising: an exterior portion (Figs. 3A-3B show the exterior of the midsole) comprising a cured, expanded reaction product of the first polymeric composition (Abstract; ¶0002, 0160); an interior portion (Fig. 3C-3D shows the interior tread portion of the midsole) comprising a cured, expanded reaction product of the second polymeric composition (Abstract; ¶0002, ¶0160); and a first surface (Fig. 3E-3G #258 upper surface) at least partially defined by the interior portion (Fig. 3E-3G) and bounded at least partially by a midsole wall comprising the exterior portion (Figs. 3E-3G show a wall around the treads #258); a second surface opposite the first surface (Fig. 3F-3G #264/266) and defined by the exterior portion (Figs. 3F-3G), the midsole wall defining a perimeter surface that extends around a perimeter of the midsole (Figs. 3A-3G), the perimeter surface of the midsole wall defining a plurality of medial notches (Fig. 3E #252 medial) and a plurality of corresponding lateral notches (Fig. 3E #252 lateral); and a plurality of medial stanchions (Stockbridge Annot. Fig. 3E) disposed between the plurality of medial notches and a plurality of corresponding lateral stanchions (Stockbridge Annot. Fig. 3E) disposed between the plurality of corresponding of lateral notches (Fig. 3E); and an outsole (Figs. 2A-2E #100; ¶0182) defining an upper surface and a ground-contacting surface (Figs. 2D-2E) with the upper surface of the outsole adjacent the second surface of the midsole (¶0168-0183), the outsole including a plurality of segments (Figs. 2A-2E; ¶0187) at least partially separated from one another by a plurality of channels (Figs. 2A-2E; ¶0187) defined by the exterior portion (¶0187; Figs. 1-5); wherein each of the plurality of channels extend in a lateral direction (Figs. 1-5) between respective ones of each of the plurality of medial notches and each of the plurality of corresponding lateral notches (Figs. 1-5); and wherein each of the plurality of segments extends in a lateral direction (Figs. 1-5) between each of the plurality of medial stanchions and each of the plurality of corresponding lateral stanchions (Figs. 1-5).
Stockbridge does not expressly disclose the colorant is titanium dioxide.
Archer teaches a process of making a pre-expanded midsole for footwear (Figs. 1-20 #100) wherein a colorant is titanium dioxide (¶0176).
Both Stockbridge and Archer teach analogous inventions in the art of pre-expanded midsole footwear. Therefore it would have been obvious to one of ordinary skill in the art prior to the effective filing date to modify Stockbridge with the teachings of Archer such that the colorant would be titanium dioxide as titanium dioxide is the premier choice for creating the color white in colorants.
Regarding Claim 2, the modified footwear construction of Stockbridge discloses the footwear construction of claim 1, wherein the exterior portion has a third density (¶0003, 0005, 0009, 0120-0125, 0136) and comprises a cured, expanded reaction product of the first polymeric composition (Abstract; ¶0160), wherein the interior portion has a fourth density (¶0003, 0005, 0009, 0120-0125, 0136) and comprises a cured, expanded reaction product of the second polymeric composition (Abstract; ¶0160, 0117-0126); and wherein the third and fourth densities are different as a result of expanding the first and second polymeric compositions in the presence of the supercritical fluid (Abstract; 0117-0126).
Regarding Independent Claim 3, Stockbridge discloses a footwear construction (Figs. 1-5 #100/110) comprising: a midsole (Figs. 1-5 #200/210/220/258) comprising a cured product of a pre-expanded midsole (Fig. 3A-3G; Abstract; ¶0002, 0160) comprising a first polymeric composition (Figs. 2A-3B #200/210; Abstract; ¶0003, 0067, 0096, 0153) comprising ethylene vinyl acetate (¶0003) and a colorant (¶0078 notes, “Dyes and colorant may be used for aesthetic purposes or to alter physical properties of the product, such as to repel light”) and having a first density (¶0003, 0005, 0009, 0120, 0136), and a second polymeric composition (Figs. 3C-3D #220/258; Abstract; ¶0003, 0067, 0096, 060) comprising ethylene vinyl acetate (¶0003) and a colorant (¶0078 notes, “Dyes and colorant may be used for aesthetic purposes or to alter physical properties of the product, such as to repel light”) and having a second density (¶0003, 0005, 0009, 0120, 0136), the pre-expanded midsole having been expanded in the presence of a supercritical fluid (¶0007-0008, 0116-0130), the midsole comprising: an exterior portion (Figs. 3A-3B show the exterior of the midsole) comprising a cured, expanded reaction product of the first polymeric composition (Abstract; ¶0002, 0160) and having a third density (¶0003, 0005, 0009, 0120-0125, 0136), whereby the exterior portion is configured to provide structural rigidity (¶0004) and energy return (¶0189); an interior portion (Fig. 3C-3D shows the interior tread portion of the midsole) comprising a cured, expanded reaction product of the second polymeric composition (Abstract; ¶0002, ¶0160) and having a fourth density (¶0003, 0005, 0009, 0120-0125, 0136), whereby the interior portion is configured to provide cushion (¶0135-0136, 0138); a first surface (Fig. 3E-3G #258 upper surface) at least partially defined by the interior portion and bounded at least partially by a midsole wall (Figs. 3A-3G) comprising the exterior portion extending around a perimeter of the first surface (Figs. 3A-3G), the first surface defining a foot-receiving cavity (Fig. 3A); and a second surface opposite the first surface (Fig. 3F-3G #264/266) and defined by the exterior portion (Figs. 3F-3G); and an outsole (Figs. 2A-2E #100; ¶0182) comprising a plurality of segments (Figs. 2A-2E; ¶0187) and defining an upper surface and a ground-contacting surface (Figs. 2A-2E; ¶0187), the upper surface of the outsole adjacent the second surface of the midsole and the ground-contacting surface (Figs. 2A-2E; ¶0187), whereby the ground contacting surface is configured to provide traction on a plurality of terrains (¶0198), wherein at least two of the plurality of segments are at least partially separated from each other with a respective portion of the midsole therebetween (Figs. 2A-2E; ¶0187), whereby the footwear construction is configured to provide energy return (¶0189) and cushion on a plurality of terrains (¶0135-0136, 0138).
Stockbridge does not expressly disclose the colorant is titanium dioxide.
Archer teaches a process of making a pre-expanded midsole for footwear (Figs. 1-20 #100) wherein a colorant is titanium dioxide (¶0176).
Both Stockbridge and Archer teach analogous inventions in the art of pre-expanded midsole footwear. Therefore it would have been obvious to one of ordinary skill in the art prior to the effective filing date to modify Stockbridge with the teachings of Archer such that the colorant would be titanium dioxide as titanium dioxide is the premier choice for creating the color white in colorants.
Examiner notes that italicized limitations in the Prior Art rejections are functional and do not positively recite a structural limitation, but instead require the ability of the structure to perform and/or function. As the Prior Art of Stockbridge discloses the structure of the footwear construction, there would be a reasonable expectation for the footwear construction to perform such functions as explained after each functional limitation.
Regarding Claim 4, the modified footwear construction of Stockbridge discloses the footwear construction of claim 3, wherein the plurality of segments extends in a lateral direction between a medial periphery of the footwear construction and a lateral periphery of the footwear construction (Figs. 1-5) and wherein the plurality of segments are at least partially separated from one another with a plurality of channels defined by the exterior portion (Figs. 1-5).
Regarding Claim 6, The modified footwear construction of Stockbridge discloses the footwear construction of claim 4, wherein at least a portion of the plurality channels increases in depth as the plurality of channels extend between a medial periphery of the footwear construction and a lateral periphery of the footwear construction (Fig. 3A-3E).
Regarding Claim 8, The modified footwear construction of Stockbridge discloses the footwear construction of claim 3, wherein the midsole wall comprising the exterior portion defines a perimeter surface that extends around a perimeter of the footwear construction and defines a plurality of medial notches on a medial periphery and a plurality of corresponding lateral notches on a lateral periphery (Fig. 3E); wherein each of the plurality of segments of the outsole are at least partially separated from one another with a plurality of channels defined by the second surface (Fig. 3E), wherein respective ones of the plurality of channels at least partially extend between respective ones of the plurality of medial notches and respective ones of the plurality of corresponding lateral notches (Fig. 3E).
Regarding Claim 9, The modified footwear construction of Stockbridge discloses the footwear construction of claim 8, wherein a plurality of medial stanchions are interposed among the plurality of medial notches (Fig. 3E) and a plurality of corresponding lateral stanchions are interposed among the plurality of corresponding lateral notches (Fig. 3E).
Regarding Claim 10, The modified footwear construction of Stockbridge discloses the footwear construction of claim 9, wherein each of the plurality of medial stanchions have a first width and each of the plurality of corresponding lateral stanchions have a second width (Fig. 3E show the widths), wherein the first width of each of the plurality of medial stanchions is greater than the second width of each of the plurality of the corresponding lateral stanchions in a midfoot region of the footwear construction (Stockbridge Annot. Fig. 3E).
Regarding Claim 11, The modified footwear construction of Stockbridge discloses the footwear construction of claim 10, wherein the first polymeric composition consists essentially of ethylene vinyl acetate and titanium dioxide (Stockbridge ¶0003 for EVA and ¶0078 for colorant modified by Archer ¶0176 for colorant being titanium dioxide), and the second polymeric composition consists essentially of ethylene vinyl acetate and a second colorant, which is different than titanium dioxide (Stockbridge ¶0003 for EVA and ¶0078 for colorant).
Regarding Claim 12, The modified footwear construction of Stockbridge discloses the footwear construction of claim 11, wherein the third and fourth densities are different as a result of expanding the first and second polymeric compositions in the presence of a supercritical fluid (¶0003, 0005, 0009, 0120-0125, 0136).
Claim(s) 5 & 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Stockbridge and Archer as applied to claims 3-4 above, and further in view of Miner US 20140250720.
Regarding Claim 5, the modified footwear construction of Stockbridge discloses the footwear construction of claim 4, wherein the exterior portion is translucent (¶0140), and the interior portion is colored (¶0140), but does not expressly disclose at least a portion of the plurality of channels exhibit a color gradient extending from the medial periphery towards the lateral periphery of the footwear construction, the color gradient resulting from a varying thickness of the exterior portion and the interior portion adjacent thereto.
Miner discloses a multicolored sole (Figs. 1-9 #100) wherein at least a portion of the plurality of channels exhibit a color gradient extending from the medial periphery towards the lateral periphery of the footwear construction (¶0003-0006, 0053, 0062-0064), the color gradient resulting from a varying thickness of the exterior portion and the interior portion adjacent thereto (Figs. 1-9; ¶0003, 0053, 0062-0064).
Both Stockbridge (as modified by Archer) and Miner teach analogous inventions in the art of pre-expanded midsole footwear. Therefore it would have been obvious to one of ordinary skill in the art prior to the effective filing date to modify Stockbridge (as modified by Archer) with the teachings of Miner such that plurality of channels exhibit a color gradient extending from the medial periphery towards the lateral periphery of the footwear construction and the color gradient results from a varying thickness of the exterior portion and the interior portion adjacent thereto because colors allow shoe brands to be recognized, color variation draws the eye and is appealing to many consumers, and color changes could be used to differentiate the different parts of the sole. It is also noted that claimed limitations to ornamentation only which have no functional relationship to the product will not distinguish the claimed product from the prior art (MPEP § 2111.05). See also In re Gulack, 703 F.2d 1381, 1385-86, 217 USPQ 401,404 (Fed. Cir 1983) ("Where the printed matter is not functionally related to the substrate, the printed matter will not distinguish the invention from the prior art in terms of patentability”). Further, it has been held to be within the general skill of a worker in the art to select a known material (such as color and material thickness) on the basis of its suitability for the intended use as a matter of obvious design choice. See MPEP 2144.07.
Regarding Claim 7, The modified footwear construction of Stockbridge discloses the footwear construction of claim 3, wherein the exterior portion is translucent (¶0140), and the interior portion is colored (¶0140), but does not expressly disclose at least a portion of the plurality of channels exhibit a color gradient extending from the medial periphery towards the lateral periphery of the footwear construction, the color gradient resulting from a varying thickness of the exterior portion and the interior portion adjacent thereto.
Miner discloses a multicolored sole (Figs. 1-9 #100) wherein at least a portion of the plurality of channels exhibit a color gradient extending from the medial periphery towards the lateral periphery of the footwear construction (¶0003-0006, 0053, 0062-0064), the color gradient resulting from a varying thickness of the exterior portion and the interior portion adjacent thereto (Figs. 1-9; ¶0003, 0053, 0062-0064).
Both Stockbridge (as modified by Archer) and Miner teach analogous inventions in the art of pre-expanded midsole footwear. Therefore it would have been obvious to one of ordinary skill in the art prior to the effective filing date to modify Stockbridge (as modified by Archer) with the teachings of Miner such that plurality of channels exhibit a color gradient extending from the medial periphery towards the lateral periphery of the footwear construction and the color gradient results from a varying thickness of the exterior portion and the interior portion adjacent thereto because colors allow shoe brands to be recognized, color variation draws the eye and is appealing to many consumers, and color changes could be used to differentiate the different parts of the sole. It is also noted that claimed limitations to ornamentation only which have no functional relationship to the product will not distinguish the claimed product from the prior art (MPEP § 2111.05). See also In re Gulack, 703 F.2d 1381, 1385-86, 217 USPQ 401,404 (Fed. Cir 1983) ("Where the printed matter is not functionally related to the substrate, the printed matter will not distinguish the invention from the prior art in terms of patentability”). Further, it has been held to be within the general skill of a worker in the art to select a known material (such as color and material thickness) on the basis of its suitability for the intended use as a matter of obvious design choice. See MPEP 2144.07.
Claim(s) 13-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Stockbridge, in view of Archer, and in view of Miner.
Regarding Independent Claim 13, Stockbridge discloses a footwear construction (Figs. 1-5 #100/110) comprising: a midsole (Figs. 1-5 #200/210/220/258) comprising a cured product of a pre-expanded midsole (Figs. 2A-5 #200) comprising a first polymeric composition (Figs. 2A-3B #200/210; Abstract; ¶0003, 0067, 0096, 0153) comprising ethylene vinyl acetate (¶0003) and a colorant (¶0078 notes, “Dyes and colorant may be used for aesthetic purposes or to alter physical properties of the product, such as to repel light”) and having a first density (¶0003, 0005, 0009, 0120, 0136), ), and a second polymeric composition (Figs. 3C-3D #220/258; Abstract; ¶0003, 0067, 0096, 060) comprising ethylene vinyl acetate (¶0003) and a colorant (¶0078 notes, “Dyes and colorant may be used for aesthetic purposes or to alter physical properties of the product, such as to repel light”) and having a second density (¶0003, 0005, 0009, 0120, 0136), the pre-expanded midsole having been expanded in the presence of a supercritical fluid (¶0007-0008, 0116-0130), the midsole comprising: an exterior portion (Figs. 3A-3B show the exterior of the midsole) comprising a cured, expanded reaction product of the first polymeric composition (Abstract; ¶0002, 0160); an interior portion (Fig. 3C-3D shows the interior tread portion of the midsole) comprising a cured, expanded reaction product of the second polymeric composition (Abstract; ¶0002, ¶0160); and a first surface (Fig. 3E-3G #258 upper surface) at least partially defined by the interior portion (Fig. 3E-3G) and bounded at least partially by a midsole wall comprising the exterior portion (Figs. 3E-3G show a wall around the treads #258); a second surface opposite the first surface (Fig. 3F-3G #264/266) and defined by the exterior portion (Figs. 3F-3G); and the midsole wall defining a perimeter surface that extends around a perimeter of the midsole (Figs. 3A-3G); wherein the exterior portion is translucent (¶0140), and the interior portion is colored (¶0140).
Stockbridge does not expressly disclose that the colorant is specifically titanium dioxide and wherein visible portions of the midsole wall and the second surface exhibit the color through the midsole wall to a plurality of varying degrees depending on a thickness of the exterior portion with the interior portion adjacent thereto.
Archer teaches a process of making a pre-expanded midsole for footwear (Figs. 1-20 #100) wherein a colorant is titanium dioxide (¶0176).
Both Stockbridge and Archer teach analogous inventions in the art of pre-expanded midsole footwear. Therefore it would have been obvious to one of ordinary skill in the art prior to the effective filing date to modify Stockbridge with the teachings of Archer such that the colorant would be titanium dioxide as titanium dioxide is the premier choice for creating the color white in colorants.
The modified footwear construction of Stockbridge does not expressly disclose wherein visible portions of the midsole wall and the second surface exhibit the color through the midsole wall to a plurality of varying degrees depending on a thickness of the exterior portion with the interior portion adjacent thereto.
Miner discloses a multicolored sole (Figs. 1-9 #100) wherein at least a portion of the plurality of channels exhibit a color gradient extending from the medial periphery towards the lateral periphery of the footwear construction (¶0003-0006, 0053, 0062-0064), the color gradient resulting from a varying thickness of the exterior portion and the interior portion adjacent thereto (Figs. 1-9; ¶0003, 0053, 0062-0064).
Both Stockbridge (as modified by Archer) and Miner teach analogous inventions in the art of pre-expanded midsole footwear. Therefore it would have been obvious to one of ordinary skill in the art prior to the effective filing date to modify Stockbridge (as modified by Archer) with the teachings of Miner such that plurality of channels exhibit a color gradient extending from the medial periphery towards the lateral periphery of the footwear construction and the color gradient results from a varying thickness of the exterior portion and the interior portion adjacent thereto because colors allow shoe brands to be recognized, color variation draws the eye and is appealing to many consumers, and color changes could be used to differentiate the different parts of the sole. It is also noted that claimed limitations to ornamentation only which have no functional relationship to the product will not distinguish the claimed product from the prior art (MPEP § 2111.05). See also In re Gulack, 703 F.2d 1381, 1385-86, 217 USPQ 401,404 (Fed. Cir 1983) ("Where the printed matter is not functionally related to the substrate, the printed matter will not distinguish the invention from the prior art in terms of patentability”). Further, it has been held to be within the general skill of a worker in the art to select a known material (such as color and material thickness) on the basis of its suitability for the intended use as a matter of obvious design choice. See MPEP 2144.07.
Regarding Claim 14, The modified footwear construction of Stockbridge discloses the footwear construction of claim 13, wherein the exterior portion has a third density (¶0003, 0005, 0009, 0120-0125, 0136) and comprises a cured, expanded reaction product of the first polymeric composition (Abstract; ¶0160), wherein the interior portion has a fourth density (¶0003, 0005, 0009, 0120-0125, 0136) and comprises a cured, expanded reaction product of the second polymeric composition (Abstract; ¶0160, 0117-0126); and wherein the third and fourth densities are different as a result of expanding the first and second polymeric compositions in the presence of the supercritical fluid (Abstract; 0117-0126).
Regarding Claim 15, The modified footwear construction of Stockbridge discloses the footwear construction of claim 14, wherein the midsole defines a plurality of medial notches (Fig. 3E #252 medial) and a plurality of corresponding lateral notches (Fig. 3E #252 lateral), wherein a plurality of medial stanchions are disposed among respective ones of the plurality of medial notches (Stockbridge Annot. Fig. 3E), wherein a plurality of corresponding lateral stanchions are disposed among respective ones of the plurality of corresponding lateral notches (Stockbridge Annot. Fig. 3E).
Regarding Claim 16, The modified footwear construction of Stockbridge discloses the footwear construction of claim 15, comprising: an outsole (Figs. 2A-2E #100; ¶0182) defining an upper surface and a ground-contacting surface (Figs. 2D-2E; ¶0168-0183), wherein the upper surface of the outsole is adjacent the second surface of the midsole (¶0168-0183), wherein the outsole includes a plurality of segments at least partially separated from one another by respective ones of a plurality of channels defined by the exterior portion (Figs. 2A-2E; ¶0187).
Regarding Claim 17, The modified footwear construction of Stockbridge discloses the footwear construction of claim 16, wherein each of the plurality of channels extend in a lateral direction between each of the plurality of medial notches and each of the plurality of corresponding lateral notches (Figs. 2A-2E; ¶0187), wherein each of the plurality of segments extends in a lateral direction between each of the plurality of medial stanchions and each of the plurality of corresponding lateral stanchions (Figs. 2A-2E; ¶0187).
Regarding Claim 18, The modified footwear construction of Stockbridge discloses the footwear construction of claim 17, wherein the plurality of segments extends in a lateral direction between a medial periphery of the midsole and a lateral periphery of the midsole (Figs. 3A-3G), wherein the plurality of segments are at least partially separated from one another (Figs. 3A-3G).
Regarding Claim 19, The modified footwear construction of Stockbridge discloses the footwear construction of claim 18, wherein the exterior portion is translucent (¶0140), and the interior portion is colored (¶0140), but does not expressly disclose wherein at least a portion of the plurality of channels exhibit a color gradient extending from the medial periphery toward the lateral periphery, wherein the color gradient is produced via a varying thickness of the exterior portion and the interior portion adjacent thereto.
The modified footwear construction of Stockbridge does not expressly disclose wherein visible portions of the midsole wall and the second surface exhibit the color through the midsole wall to a plurality of varying degrees depending on a thickness of the exterior portion with the interior portion adjacent thereto.
Miner discloses a multicolored sole (Figs. 1-9 #100) wherein at least a portion of the plurality of channels exhibit a color gradient extending from the medial periphery towards the lateral periphery of the footwear construction (¶0003-0006, 0053, 0062-0064), the color gradient resulting from a varying thickness of the exterior portion and the interior portion adjacent thereto (Figs. 1-9; ¶0003, 0053, 0062-0064).
Both Stockbridge (as modified by Archer) and Miner teach analogous inventions in the art of pre-expanded midsole footwear. Therefore it would have been obvious to one of ordinary skill in the art prior to the effective filing date to modify Stockbridge (as modified by Archer) with the teachings of Miner such that plurality of channels exhibit a color gradient extending from the medial periphery towards the lateral periphery of the footwear construction and the color gradient results from a varying thickness of the exterior portion and the interior portion adjacent thereto because colors allow shoe brands to be recognized, color variation draws the eye and is appealing to many consumers, and color changes could be used to differentiate the different parts of the sole. It is also noted that claimed limitations to ornamentation only which have no functional relationship to the product will not distinguish the claimed product from the prior art (MPEP § 2111.05). See also In re Gulack, 703 F.2d 1381, 1385-86, 217 USPQ 401,404 (Fed. Cir 1983) ("Where the printed matter is not functionally related to the substrate, the printed matter will not distinguish the invention from the prior art in terms of patentability”). Further, it has been held to be within the general skill of a worker in the art to select a known material (such as color and material thickness) on the basis of its suitability for the intended use as a matter of obvious design choice. See MPEP 2144.07.
Regarding Claim 20, The modified footwear construction of Stockbridge discloses the footwear construction of claim 13, wherein the second polymeric composition comprises at least one of an olefin block copolymer and a polyolefin elastomer (¶0067, 0076-0080).
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Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Baghdadi US 20210079188 teaches a pre-formed polymeric sole
Fakhouri US 20190365028 teaches a pre-formed two-part sole
Choi US 20200046068 teaches a midsole structure
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RAQUEL M. WEIS whose telephone number is 571-272-6804. The examiner can normally be reached Mon-Fri: 0800-1700.
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/RAQUEL M. WEIS/Examiner, Art Unit 3732
/HEATHER MANGINE, Ph.D./Primary Examiner, Art Unit 3732
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