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 .
Status of the Claims
This action is in response to the applicant’s filing on February 02, 2026. Claims 1-20 are pending, claims 9-20 have been withdrawn based on the election/restriction mailed December 03, 2025. Therefore claims 1-8 have been examined below.
Election/Restrictions
Applicant’s election of Invention I including claims 1-8 in the reply filed on February 02, 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)).
Specification
The disclosure is objected to because of the following informalities: The specification is objected to for the use of the acronym TPU without first providing the meaning of the acronym (See paragraph 0157). For examination purposes, TPU has been read as “Thermoplastic Polyurethane”; however, providing a definition for an abbreviation or an acronym is important since applicant can be their own lexicographer.
Appropriate correction is required.
Drawings
The drawings are objected to because Figure 7 does not properly label the parts of the jig assembly 200. Figure 7 should have a bracket or lead lines connecting the plurality of members into which jig assembly is assembled/disassembled. Applicant should use a bracket or lead lines to indicate how the relationship of components are connected or relabel the Figures (7A, 7B, 7C, 7D, 7E, & 7F). See: 37 CFR 1.84(h)(1).
The drawings are objected to because Figure 8 does not properly label the parts of the cutting jig 218 . Figure 8 should have a bracket or lead lines connecting the cutting jig 218 into which jig assembly is assembled/disassembled. Applicant should use a bracket or lead lines to indicate how the relationship of components are connected or relabel the Figures (8A & 8B). See: 37 CFR 1.84(h)(1).
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.
Claim 4 is 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 4 is rejected because the phrase "a knit material having a z height distention of greater than 10 mm at 200 kPa load" is indefinite. Examiner notes that a single claim which claims both an apparatus and the method steps of using the apparatus is indefinite under 35 U.S.C. 112, 2nd paragraph. Ex parte Lyell, 17 USPQ2d 1548 (Bd. Pat. App. & Inter. 1990) Examiner is examining the claim based on Applicant’s disclosure which recites in paragraph 0153-0154 that the strobel (or insole, sockliner, or bottom surface of the upper to which the sensory nodes are directly attached) can be a stretchable fabric (or knit) can comprise interlock, knit polyester or spandex.
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 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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-3 and 5-7 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by United States Patent Application Publication No. US-20170251753 A1 James C. Meschter, (herein after "Meschter").
As to Claim 1, Meschter discloses an article of footwear (110) comprising: an upper (upper 120; Meschter); a sole (sole body portion 112; Meschter) coupled to the upper (upper 120; Meschter), wherein the sole (sole body portion 112; Meschter) comprises a plurality of spaced apart apertures (apertures 714; Meschter) extending through the sole (sole body portion 112; Meschter); and a plurality of individual sensory nodes (plurality of sensory node elements 114; Meschter), wherein each sensory node (sensory node element 114; Meschter) has a first end (top surface 116; Meschter) coupled directly to the upper (upper 120; Meschter) and an opposite (Paragraphs 0041, 0058; Meschter “Apertures 714 permit top surface 116 of plurality of elements 114 to be attached to upper 120 and allow for independent movement of plurality of sensory node elements 114 from sole body portion 112 when bottom surface 115 of plurality of sensory node elements 114 contact a surface.”), second end (bottom surface 115; Meschter) configured to engage with a ground surface (Paragraph 0041, 0058; Meschter), and wherein each sensory node (sensory node element 114; Meschter) is configured to translate freely within a respective aperture of the sole (sole body portion 112; Meschter) (Paragraph 0058; Meschter “Apertures 714 permit top surface 116 of plurality of sensory node elements 114 to be attached to upper 120 and allow for independent movement of plurality of sensory node elements 114 from sole body portion 112 when bottom surface 115 of plurality of sensory node elements 114 contact a surface.”).
As to Claim 2, Meschter discloses the article of footwear of claim 1, wherein the sensory nodes of the plurality of sensory nodes (plurality of sensory node elements 114; Meschter) are unattached to one another and spaced away from the sole (sole body portion 112; Meschter) (Paragraph 0062; Meschter “Additionally, plurality of sensory node elements 114 are not attached or joined to sole body portion 112 so that plurality of sensory node elements 114 are permitted to wobble and independently move in at least a vertical direction within apertures 714 in sole body portion.”).
As to Claim 3, Meschter discloses the article of footwear of claim 1, wherein the first end of each sensory node (sensory node element 114; Meschter) is attached to a strobel (base layer 128; Meschter ~ regarding a strobel sock) of the upper (upper 120; Meschter)(Paragraph 0054; Meschter).
As to Claim 5, Meschter discloses the article of footwear of claim 1, wherein the sensory nodes of the plurality of sensory nodes (plurality of sensory node elements 114; Meschter) are spaced apart across a majority of the sole (sole body portion 112; Meschter)(Figure 5; Meschter ~ regarding being spaced apart across a majority of the sole).
As to Claim 6, Meschter discloses the article of footwear of claim 1, wherein the sensory nodes of the plurality of sensory nodes (plurality of sensory node elements 114; Meschter) are spaced apart across a portion of the sole (sole body portion 112; Meschter) (Figure 5; Meschter ~ regarding being spaced apart across a portion of the sole).
As to Claim 7, Meschter discloses the article of footwear of claim 1, wherein the first end of at least one sensory node (sensory node element 114; Meschter) of the plurality of sensory nodes is sloped (Figure 3; Meschter).
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 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.
Claim 4 is rejected under 35 U.S.C. § 103 as being unpatentable over United States Patent Application Publication No. US 20170251753 A1 James C. Meschter, (herein after "Meschter") in view of United States Patent Application Publication No. US 20210030117 A1 Frazier; Devon, (herein after "Frazier").
As to Claim 4, Meschter discloses the article of footwear of claim 3, wherein the strobel (base layer 128; Meschter ~ regarding a strobel sock) comprises a knit material (Paragraph 0080; Meschter teaching “In some embodiments, base layer 128 may be formed from a flexible or stretchable layer or membrane, including materials made of elastic, rubber, woven or knit textiles,”) but fails to explicitly disclose having a z height distention of greater than 10 mm at 200 kPa load (Examiner notes that a single claim which claims both an apparatus and the method steps of using the apparatus is indefinite under 35 U.S.C. 112, 2nd paragraph. Ex parte Lyell, 17 USPQ2d 1548 (Bd. Pat. App. & Inter. 1990).
Frazier teaches textiles and articles and processing for a knit strobel (paragraph 0085; Frazier) and discloses comprising a knit (Paragraphs 0074, 0176, 0216, 0240, Frazier).
Therefore, based on Frazier’s teachings, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to have modified Meschter’s Strobel to include being knit, as doing so would provide enhanced comfort, durability, and performance for the wearer.
Meschter/Frazier disclose the claimed invention (knit Strobel comprising spandex) except for having a z height distention of greater than 10 mm at 200 kPa load. Height distention is a results effective variable with the results being greater than 10 mm at 200 kPa load. It would have been obvious to one having ordinary skill in the art at the time the invention was made a z height distention of greater than 10 mm at 200 kPa load, since 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.
Claim 8 is rejected under 35 U.S.C. § 103 as being unpatentable over United States Patent Application Publication No. US 20170251753 A1 James C. Meschter, (herein after "Meschter") in view of United States Patent Application Publication No. US 2024/0130474 A1 Courtney M. Wright, (herein after "Wright").
As to Claim 8, Meschter discloses the article of footwear of claim 1, wherein the upper (upper 120; Meschter) and the sole (sole body portion 112; Meschter) but fails to disclose being formed as one piece.
Wright teaches footwear having an upper and a sole and discloses being formed as one piece (Paragraphs 0025, 0029, 0075, 0079; Wright, as doing so would provide enable easy assembly of footwear components for the wearers use).
Therefore, based on Wright’s teachings, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to have modified Meschter’s article of footwear to include being formed as one piece, as doing so would enable easy assembly of footwear components for the wearer’s use.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant’s disclosure and can be found in PTO-892 for submitted herewith. The cited
prior art reference to Liu (US 2024/0148108 A1) is of particular relevance to the
claimed invention.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AKWOKWO REDHEAD whose telephone number is (571)272-7581. The examiner can normally be reached Monday - Friday7:00 AM to 4:00pm EST.
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/AKWOKWO OLABISI REDHEAD/Examiner, Art Unit 3732
/ALISSA L HOEY/Primary Examiner, Art Unit 3732