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 of 10/27/2025
Applicant’s amendment of 10/27/2025 is acknowledged.
Claims 1-9 are presented.
Claim 1 is presented in independent form and is amended.
Dependent claim 4 is amended.
Claims 6-9 were previously withdrawn.
Claims 10-11 are canceled in the reply.
The present Office action treats claims 1-5 on the merits.
The present Office action is a final rejection.
Response to Supplemental Amendment of 10/28/2025
Applicant’s supplemental amendment of 10/28/2025 is acknowledged.
Replacement drawing sheets are provided in the supplemental amendment.
This amendment is acceptable and is entered.
This Office action is responsive to the Applicant’s first reply of 10/27/2025 and Applicant’s supplemental reply of 10/28/2025.
Response to Arguments
Applicant’s REMARKS of 10/27/2025 (see p. 6-9 of the reply) are fully considered.
Regarding the “drawings are...objected to” (p. 6): Applicant’s arguments are fully considered and are persuasive. Applicant’s replacement sheets of 10/28/2025 overcome the drawings objection as applied in the previous office action.
Regarding “claims 1-5, 10, and 11...rejected under 35 U.S.C. 112(b)” (p. 6): Applicant’s arguments are fully considered. Applicant’s claim amendments render the 35 USC 112 rejections as applied in the previous office action moot. However, Applicant’s claim amendments have necessitated new 35 USC 112 rejections; see Claim Rejections - 35 USC § 112 below.
Regarding “claims...rejected under 35 U.S.C. §102(a)(1)” (p. 6-8): Applicant’s arguments are fully 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.
Drawings
The replacement sheets were received on 10/28/2025. These drawings are acceptable and are entered.
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.
Claims 1-5 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 1 recites “A sole for a shoe” such that the “shoe” is functionally recited. Claim 1 further recites in line 18 “a sole posture in which the shoe is not worn” such that it is not clear whether recitation of “the shoe” in line 18 is meant to structurally claim a shoe, introduce a newly claimed structural shoe, and/or is meant to further limit the functionally recited shoe of claim 1 line 1. For the purpose of applying art, “a sole posture in which the shoe is not worn by a shoe wearer, a load from a foot of the shoe wearer” is interpreted as if it reads --a sole posture in which the sole is not worn by a wearer, a load from a foot of the wearer--
Claims 2-5 are indefinite if only because they depend from an indefinite claim.
In addition, claim 4 is further indefinite. Firstly, claim 4 further limits “the shoe”. As stated above in explaining how claim 1 is indefinite, recitation of “the shoe” is indefinite insofar as it is not understood whether it is meant to structurally claim a shoe, introduce a newly claimed structural shoe, and/or is meant to further limit the functionally recited shoe of claim 1 line 1.
Claim 4 is further indefinite in reciting “in said sole stable posture, when said sole takes a static upright posture in which the shoe is worn by the shoe wearer and the load from the foot of the shoe wearer is statically applied to said sole”. However, claim 1, upon which claim 4 depends, recites “a sole posture in which the shoe is not worn by a shoe wearer, a load from a foot of the shoe wearer is not applied to said sole, and said sole is in contact with the ground at points C and D is defined as a sole stable posture” such that it is not clear how the sole stable posture as recited in claim 1 can take a static upright posture in which the shoe is worn by the shoe wearer and the load from the foot of the shoe wearer is statically applied to said sole. In other words, claim 1 states that the sold stable posture is defined “in which the shoe is not worn...a load from a foot...is not applied”. However, claim 4 states that in the sole stable posture, the shoe is worn by the wearer and the load from the foot is applied (emphases provided by Examiner) such that it is not clear how a given sole stable posture can meet both claim 1 and also claim 4 criteria. For the purpose of applying art, claim 4 limitations are met if θ<5 degrees when a load from a foot of a wearer is statically applied to the sole.
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) 1-3, as best understood, is/are rejected under 35 U.S.C. 103 as being unpatentable over [Darby, US 2002/0178621, newly cited] in view of [Muller, US 6,341,432, newly cited] and [Kita, US 2020/0154822, newly cited].
Regarding claim 1:
Darby discloses (Figs. 1-4 and 5B):
A sole 100, 500 (i.e. the combined “out sole 100” and “insole 500”; para 22) for a shoe 10, said sole comprising a heel region 263, a midfoot region 262 and a forefoot region 261 that respectively correspond to a heel portion, a midfoot portion and a forefoot portion of a foot of a shoe wearer (Figs. 2 and 4; para 32), said sole extending from a said heel region through a said midfoot region to a said forefoot region (Figs. 2 and 4; para 32) and having a sole upper surface (see annotated Figs. 2 and 4 – a below) and a sole lower surface (see annotated Figs. 2 and 4 – a below),
wherein a straight line connecting a rearmost end position of said sole upper surface with a distal end position of a toe is designated as a reference line S (see annotated Figs. 2 and 4 – a below), said rearmost end position is designated as an origin O (see annotated Figs. 2 and 4 – a below), a path length measured along said sole upper surface from the origin O to said distal end position of said toe is designated as L, an intersection point between said sole lower surface and a line extending perpendicularly to said reference line S through an apparent position of 0.45 ×L from the origin O along said sole upper surface is designated as point C (see annotated Figs. 2 and 4 – a below), and another intersection point between said sole lower surface and another line extending perpendicularly to said reference line S through an apparent position of 0.60×L from the origin O along said sole upper surface is designated as point D (see annotated Figs. 2 and 4 – a below),
wherein a sole posture in which the shoe is not worn by a shoe wearer, a load from a foot of the shoe wearer is not applied to said sole, and said sole is in contact with the ground at points C and D is defined as a sole stable posture (as in Figs. 2 and 4; it is noted that Figs. 2 and 4 do not show the ground and further that Figs. 2 and 4 show a wearer’s foot atop the sole; however, Darby meets the limitation in that the “flat stable mid-section” (para 32) of bottom 160 of outsole that comprises points C and D is configured to rest atop a flat ground surface whether a wearer’s foot is provided thereupon or not),
wherein in said sole stable posture, said sole lower surface is separated from the ground at a toe portion and said sole lower surface is separated from the ground at said heel region to be in a heel-up state (as in Figs. 2 and 4; it is noted that Figs. 2 and 4 do not show the ground and further that Figs. 2 and 4 shows a wearer’s foot atop the sole; however, Darby meets the limitation in that the “tapers off toward the toe of the out sole in the toe section 261. The heel section 263 of the rocker bottom 160 of the out sole 100 is tapered at an oblique angle from mid-section 262 to the rear of the rocker bottom 160 of the out sole 100 in a manner to cause heel strike about mid-heel at the oblique angle 268 between the heel section 263 and mid section 262” (para 32) such that the tapered heel section and the tapered toe sections are configured to be separated from a flat ground that is in contact with the flat mid-section thereof),
wherein in said sole stable posture, an angle θ is defined as an angle formed between the ground and a line connecting a heel central position of 0.15×L from the origin O along said sole upper surface and a metatarsophalangeal joints position of 0.68×L from the origin O along said sole upper surface (see annotated Figs. 2 and 4 – a below),
wherein points C and D are disposed at both a lateral side edge portion (Fig. 6) of said sole lower surface and a medial side edge region (Fig. 2) of said sole lower surface, and a region extending from point C to point D of said sole lower surface constitutes a flat- shaped stable region (“flat stable mid section 262”; para 32), and
wherein in said sole stable posture, said flat-shaped stable region extending from point C at the position of 0.45 ×L to point D at the position of 0.60 ×L is in contact with the ground (as in Figs. 2 and 4; it is noted that Figs. 2 and 4 do not show the ground and further that Figs. 2 and 4 shows a wearer’s foot atop the sole; however, Darby meets the limitation in that the “flat stable mid-section” (para 32) of bottom 160 of outsole that comprises points C and D and is extending from point C to point D is configured to rest atop and contact a flat ground surface whether a wearer’s foot is provided thereupon or not).
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Darby does not expressly disclose wherein a straight line connecting a rearmost end position of said sole upper surface with a distal end position of a toe is designated as a reference line S, said rearmost end position is designated as an origin O, a path length measured along said sole upper surface from the origin O to said distal end position of said toe is designated as L, an intersection point between said sole lower surface and a line extending perpendicularly to said reference line S through a position of 0.45×L from the origin O along said sole upper surface is designated as point C, and another intersection point between said sole lower surface and another line extending perpendicularly to said reference line S through a position of 0.60×L from the origin O along said sole upper surface is designated as point D; wherein a sole posture in which the shoe is not worn by a shoe wearer, a load from a foot of the shoe wearer is not applied to said sole, and said sole is in contact with the ground at points C and D (i.e. as mathematically defined as a position of 0.45×L and 0.60×L, respectively) is defined as a sole stable posture.
Rather, as explained above, Darby appears to meet the limitation in that the points C and D identified in above annotated Figs. 2 and 4 – a appear to be at a position of 0.45×L and 0.60×L.
Darby is not expressly to scale and shows two-dimensional representations of the three-dimensional sole and shoe.
Marker 270 “is provided on the medial side surface of the out sole approximately ⅓ the longitudinal distance between a front surface of a tapered toe section of the shoe and rear surface of a tapered heel section” (claim 36) such that the points identified in Fig. 2 appear to be approximately at 0.45L and 0.6L as claimed.
It 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 to have modified the sole of Darby such that an intersection point between said sole lower surface and a line extending perpendicularly to said reference line S through a position of 0.45×L from the origin O along said sole upper surface is designated as point C, and another intersection point between said sole lower surface and another line extending perpendicularly to said reference line S through a position of 0.60×L from the origin O along said sole upper surface is designated as point D; wherein a sole posture in which the shoe is not worn by a shoe wearer, a load from a foot of the shoe wearer is not applied to said sole, and said sole is in contact with the ground at points C and D is defined as a sole stable posture, as appears to be the case in Darby Figs. 2 and 4, in order to yield the predictable result of a sole whose flat stable mid section is configured to be provided under a location of a foot of a wearer that is within the range of 0.45 – 0.6 of the heel-to-toe length of the foot of the wearer who prefers the stability afforded by such an arrangement.
Darby does not expressly disclose wherein in said sole stable posture, an inequality, θ ≥5 [degrees] is satisfied in which said angle θ is defined as an angle formed between the ground and a line connecting a heel central position of 0.15×L from the origin O along said sole upper surface and a metatarsophalangeal joints position of 0.68×L from the origin O along said sole upper surface.
Rather, the angle θ identified in the above annotated Figs. 2 and 4 – a appears to be around five degrees; Darby is not expressly to scale and shows two-dimensional representations of the three-dimensional sole and shoe.
Muller teaches a shoe sole 2 wherein “The sole top forms an angle α with the underside of the sole and this angle is in the range of approximately 8° to approximately 20°” wherein said angle α is also an angle between a ground and a line connecting a heel central position and a metatarsophalangeal joints position along a sole upper surface (Fig. 1 and insofar as the shoe of Fig. 1 is configured to rest on a ground surface with said underside of said sole resting on a flat ground surface).
It 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 to have modified the modified Darby such that wherein in said sole stable posture, an inequality, θ ≥5 [degrees] is satisfied in which said angle θ is defined as an angle formed between the ground and a line connecting a heel central position of 0.15×L from the origin O along said sole upper surface and a metatarsophalangeal joints position of 0.68×L from the origin O along said sole upper surface in order to yield the predictable result of a sole wherein a heel central portion of a foot of a wearer is elevated above a metatarsophalangeal joints position at such an angle over the range of 0.15 – 0.68 of the heel-to-toe length of the foot for a wearer who prefers the heel rise afforded by such an arrangement when donning the shoe and/or wearing the shoe.
Darby does not expressly disclose wherein a sole compressive rigidity in an up-and-down direction is relatively lower at a heel-up starting position of said heel region than at said metatarsophalangeal joints position.
However and in further view of Darby:
Darby teaches a “metatarsal shank 155” is provided at the metatarsophalangeal joints position, wherein said metatarsal shank is “constructed of metal...that begins near the distal ⅓ of the metatarsals (710, as shown in FIG. 5) extending across the metatarsal-phalangel joints to control motion in that portion of the foot”; para 30) and may be “comprised of one of a metallic material and a rigid plastic material” (claim 4), while the out sole 100 “may be constructed from any suitable material including without limitation Ethylene Vinyl Acetate (E V A); polyurethane or other plastic or thermoplastic; rubber, including thermoplastic rubber (TPR), styrene butadiene rubber and natural rubber; or combination thereof” (para 24) and the insole 500 is “constructed of Ethyl Vinyl Acetate (EVA) or other suitable material of varying densities” (para 31).
Although Darby does not teach the metatarsal shank results in a lower compressive rigidity in an up-and-down direction at a heel-up starting position than at the metatarsophalangeal joints position, one of ordinary skill would have expected a metallic or rigid plastic metatarsal shank to afford such a property relative to the ethyl vinyl acetate and “Ethylene Vinyl Acetate (E V A); polyurethane or other plastic or thermoplastic; rubber, including thermoplastic rubber (TPR), styrene butadiene rubber and natural rubber; or combination thereof” of the rest of the sole.
Kita teaches a sole “sole structure” (para 3) wherein a hard plate member (“plate formed of hard elastic”; para 3; “hard...rubber”; para 2) is configured to decrease the compressive rigidity of the remainder of the sole structure that it is disposed between (.e. the “upper and lower midsoles formed of...EVA (ethylene-vinyl acetate copolymer[]”; para 2): “when the upper and lower midsoles deform compressively, the...plate formed of hard elastic member restrains a compressive deformation of the entire upper and lower midsoles, thus improving stability at the time of impacting the ground” (para 3).
It 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 to have modified the modified Darby such that its sole compressive rigidity in an up-and-down direction is relatively lower at a heel-up starting position of said heel region than at said metatarsophalangeal joints position in order to afford stability in the metatarsophalangeal joint position, as suggested by Kita (para 3). One of ordinary skill would have been motivated to adopt the modification insofar as Darby teaches the rigid shank provided at the metatarsophalangeal joint position is for stability (“reduces motion...adds strength” (para 27); “control motion” (para 30)).
Regarding claim 2:
Darby in view of Muller and Kita teach The sole according to claim 1, as set forth above.
The modified Darby further meets the limitation wherein in said sole stable posture, said sole lower surface is separated from the ground in a rearward region that extends rearward from the position of 0.15XL from the origin O along said sole upper surface (see annotated Figs. 2 and 4 – b below), said sole lower surface is separated from the ground in a forward region that extends forward from the position of 0.68XL from the origin O along said sole upper surface (see annotated Figs. 2 and 4 – b below), and said sole lower surface is in contact with the ground in a forward region that extends forward from the position of 0.15XL from the origin O along said sole upper surface (see annotated Figs. 2 and 4 – b below) and in a rearward region that extends rearward from the position of 0.68XL from the origin O along said sole upper surface (see annotated Figs. 2 and 4 – b below).
(it is noted that Figs. 2 and 4 do not show the ground and further that Figs. 2 and 4 show a wearer’s foot atop the sole; however, the modified Darby meets the limitation in that the rearward region that extends rearward from the position of 0.15XL from the origin O along said sole upper surface and the forward region that extends forward from the position of 0.68XL from the origin O along said sole upper surface are configured to be separated from a flat ground surface when the flat stable mid section 262 is provided atop and resting on a flat ground surface whether a wearer’s foot is provided thereupon or not and the forward region that extends forward from the position of 0.15XL from the origin O along said sole upper surface and rearward region that extends rearward from the position of 0.68XL from the origin O along said sole upper surface are configured to rest atop and contact a flat ground surface whether a wearer’s foot is provided thereupon or not; it is further noted that the “ground” is functionally claimed and a ground can present an irregular surface to a foot of a wearer as evidenced by extrinsic reference [Tsuji, US 6,260,289]—see Tsjui col. 7 lines 43-45 and Fig. 15—such that the limitation is further met when an irregular ground surface is provided in relation to the sole such that separation and contact are capable of occurring as claimed.)
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Regarding claim 3:
Darby in view of Muller and Kita teach The sole according to claim 1, as set forth above.
The modified Darby as applied to claim 1 does not meet the limitation wherein said heel-up starting position is disposed at a backside of an ankle position of 0.27XL from the origin O along said sole upper surface.
Rather, as stated above in addressing claim 1, the modified Darby meets the limitation “a sole compressive rigidity in an up-and-down direction is relatively lower at a heel-up starting position of said heel region than at said metatarsophalangeal joints position” but does not expressly identify the precise location of said heel-up starting position and whether it is disposed at a backside of an ankle position of 0.27XL from the origin O along said sole upper surface as claimed.
However, and in further view of Darby and Kita:
However and in further view of Darby:
Darby teaches a “metatarsal shank 155” is provided at the metatarsophalangeal joints position, wherein said metatarsal shank is “constructed of metal...that begins near the distal ⅓ of the metatarsals (710, as shown in FIG. 5) extending across the metatarsal-phalangel joints to control motion in that portion of the foot”; para 30) and may be “comprised of one of a metallic material and a rigid plastic material” (claim 4), while the out sole 100 “may be constructed from any suitable material including without limitation Ethylene Vinyl Acetate (E V A); polyurethane or other plastic or thermoplastic; rubber, including thermoplastic rubber (TPR), styrene butadiene rubber and natural rubber; or combination thereof” (para 24) and the insole 500 is “constructed of Ethyl Vinyl Acetate (EVA) or other suitable material of varying densities” (para 31).
Although Darby does not teach the metatarsal shank results in a lower compressive rigidity in an up-and-down direction at a heel-up starting position disposed at a backside of an ankle position of 0.27XL from the origin O along said sole upper surface than at the metatarsophalangeal joints position, one of ordinary skill would have expected a metallic or rigid plastic metatarsal shank to afford such a property relative to the ethyl vinyl acetate and “Ethylene Vinyl Acetate (E V A); polyurethane or other plastic or thermoplastic; rubber, including thermoplastic rubber (TPR), styrene butadiene rubber and natural rubber; or combination thereof” of the rest of the sole—including at a backside of an ankle position of 0.27XL from the origin O along said sole upper surface.
Kita teaches a sole “sole structure” (para 3) wherein a hard plate member (“plate formed of hard elastic”; para 3; “hard...rubber”; para 2) is configured to decrease the compressive rigidity of the remainder of the sole structure that it is disposed between (.e. the “upper and lower midsoles formed of...EVA (ethylene-vinyl acetate copolymer[]”; para 2): “when the upper and lower midsoles deform compressively, the...plate formed of hard elastic member restrains a compressive deformation of the entire upper and lower midsoles, thus improving stability at the time of impacting the ground” (para 3).
It 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 to have modified the modified Darby such that its sole compressive rigidity in an up-and-down direction is relatively lower at a heel-up starting position of said heel region disposed at a backside of an ankle position of 0.27XL from the origin O along said sole upper surface than at said metatarsophalangeal joints position in order to afford stability in the metatarsophalangeal joint position as opposed to the rest of the sole including the heel region disposed at a backside of an ankle position of 0.27XL from the origin O along said sole upper surface, as suggested by Kita (para 3). One of ordinary skill would have been motivated to adopt the modification insofar as Darby teaches the rigid shank provided at the metatarsophalangeal joint position is for stability (“reduces motion...adds strength” (para 27); “control motion” (para 30)).
Claim(s) 4, as best understood, is/are rejected under 35 U.S.C. 103 as being unpatentable over [Darby, US 2002/0178621, newly cited], [Muller, US 6,341,432, newly cited], and [Kita, US 2020/0154822, newly cited] as applied to claim 1 above, and further in view of [Teteriatnikov, US 2010/0263234, newly cited].
Regarding claim 4:
Darby in view of Muller and Kita teach The sole according to claim 1, as set forth above.
The modified Darby as applied to claim 1 does not meet the limitation wherein in said sole stable posture, when said sole takes a static upright posture in which the shoe is worn by the shoe wearer and the load from the foot of the shoe wearer is statically applied to said sole, said sole compressive rigidity satisfies an inequality, 0<5 [degrees].
As stated above in addressing claim 1, the modified Darby meets the limitation “wherein a sole compressive rigidity in an up-and-down direction is relatively lower at a heel-up starting position of said heel region than at said metatarsophalangeal joints position”.
The compressive rigidity relative difference as set forth in above addressing of claim 1 is not provided with such specificity that the angle θ when a load is applied to the sole is defined.
However, it is noted that in the modified Darby, the compressive rigidity due to the sole shank 155 is higher at the metatarsophalangeal joints position (see above treatment of claim 1) such that when a load is applied to the sole, the heel-up starting position would be spatially compressed to a greater degree than the metatarsophalangeal joints position such that the angle θ would decrease when a load is applied thereto.
Nevertheless, Teteriatnikov teaches a shoe sole 103, 105 (i.e. the combined “midsole 103” and “outsole 105”; para 66) wherein in response to a load applied to a heel region thereof, the heel region thereof compresses (“heel region...deforms...the user's heel sinks or moves toward the ground...This sinking or downward movement is due...to...compression of the heel region of the midsole...respond to the increasing weight being transmitted through the user's heel...and the user's heel continues to bear an increasing amount of the user's weight” (para 32). And Teteriatnikov as embodied in Figs. 5B-5D teaches the sole is provided relative to a ground 100 in such a way that when certain forces are provided thereupon, an angular relationship between the sole upper surface and the ground is capable of adopting various configurations including a configuration wherein a distal end position of a toe is provided above a rearmost end position (Fig. 5B), a configuration wherein the distal end position of the toe is provided above the rearmost end position (Fig. 5D), and a configuration wherein the distal end position of the toe is provided substantially at equal height to the rearmost end position (Fig. 5C). Teteriatnikov does not specify the precise angle of any particular configuration relative to ground 100; however, one of ordinary skill would look to Figs. 5B-5D and expect that an angle of less than five degrees would be achievable when a load is applied to the sole and during the process of transitioning between and/or among the configurations shown in Figs. 5B, 5C, and 5D based on the amount and distribution of the wearer’s weight applied to the sole when a load is applied to the sole; it is noted a wearer can shift his weight within a foot and from foot-to-foot whilst using the sole.
Teteriatnikov further teaches the “heel region...is... relatively soft and highly compressible” (para 88).
It 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 to have modified the modified Darby such that when a load is applied to a heel region thereof, the angle θ is < 5 degrees, in order to yield the predictable result of a sole whose heel-up starting position is configured to cushion a wearer’s heel via the soft and compressive characteristics that permit the adoption of such an angle in the heel-up starting position when the weight of his heel is applied thereto whilst using the sole.
In adopting the modification, one would arrive at “wherein in said sole stable posture, when said sole takes a static upright posture in which the shoe is worn by the shoe wearer and the load from the foot of the shoe wearer is statically applied to said sole, said sole compressive rigidity satisfies an inequality, 0<5 [degrees]” as best understood.
Claim(s) 5, as best understood, is/are rejected under 35 U.S.C. 103 as being unpatentable over [Darby, US 2002/0178621, newly cited], [Muller, US 6,341,432, newly cited], and [Kita, US 2020/0154822, newly cited] as applied to claim 1 above, and further in view of [Kilgore, US 2007/0101612, newly cited].
Regarding claim 5:
Darby in view of Muller and Kita teach The sole according to claim 1, as set forth above.
Darby does not expressly disclose wherein said heel region has an aperture and said forefoot region does not have an aperture.
However, Kilgore teaches a sole (“sole assembly”; Abstract) wherein a heel region has an aperture (“cavity 32, formed in midsole 20 and having a peripheral upper edge 34 and a cavity wall 36. In the illustrated embodiment cavity 32 is an aperture extending through midsole 20”; para 20 and wherein said aperture is “An aperture is formed in a heel portion of the midsole”; para 6 and Figs. 1-3) and a forefoot region does not have an aperture (as evidenced in Fig. 2).
Kilgore further teaches the heel region provided with the aperture is such that extraneous structure such that when a heel force is applied thereto, said extraneous structure “is forced downwardly and engages membrane 40, thereby deforming and extending membrane 40 downwardly. The tension created in membrane 40 as it stretches decelerates the load and attenuates the force of the user's impact” (para 28).
It 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 to have modified the modified Darby such that it its heel region has an aperture and said forefoot region does not have an aperture in order to permit further attachment of additional structure to the aperture for the purpose of attenuating heel force impact, as taught by Kilgore (para 28).
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.
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/GRADY ALEXANDER NUNNERY/Examiner, Art Unit 3732