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
The amendments filed on 12/08/2025 have been entered. Claims 1-7 and 9-21 remain pending in the application, with Claim 8 being newly canceled, Claim 21 being newly added, and Claims 1, 4, 9, 10, and 15 being newly amended. Applicant’s amendments to the Claims have overcome each and every objection previously set forth in the Non-final Office Action mailed 08/08/2025.
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 and 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Rudy (US 2004/0237346) in view of Passke (US D364036).
Regarding Claim 1, Rudy teaches an article of footwear (see fig. 2) comprising: an upper (23); and a sole structure (see annotated Fig.), wherein the sole structure comprises: a midsole (29), wherein the midsole comprises at least one partially enclosed cavity (see annotated Fig.); a first cushioning element (27) disposed within the at least one partially enclosed cavity (annotated fig. 2 shows the first cushioning element (27) being disposed within the at least one partially enclosed cavity), wherein the cushioning element comprises a first barrier film (see annotated Fig.) and a second barrier film (see annotated Fig.) enclosing an internal volume (paragraph [0028] teaches “fluid containing multi-chamber cushions 25” and paragraph [0029] teaches “The cushion can be formed of any flexible material which is at least a partial barrier to the diffusion of at least one gas,” therein the cushioning element clearly has a first and second barrier film and encloses an internal volume so as to contain the fluid); a second cushioning element (25) disposed within the at least one partially enclosed cavity (annotated fig. 2 shows the second cushioning element (25) disposed within the at least one partially enclosed cavity; paragraph [0028] teaches “fluid containing multi-chamber cushions 25 and 27 secured in midsole 29. The fluid containing cushions are preferably foam encapsulated as an integral part of midsole 29,” therein the cushioning element and second cushioning element are clearly disposed within the at least one partially enclosed cavity), wherein the second cushioning element includes a third barrier film (see annotated Fig.) and a fourth barrier film (see annotated Fig.) enclosing an internal volume (paragraph [0028] teaches “fluid containing multi-chamber cushions 25” and paragraph [0029] teaches “The cushion can be formed of any flexible material which is at least a partial barrier to the diffusion of at least one gas,” therein the second cushioning element (25) clearly has a third and fourth barrier film and encloses an internal volume so as to contain the fluid); and an outsole (31), wherein the outsole comprises a ground-engaging surface (fig. 2 shows the outsole (31) having a ground engaging surface).
Rudy does not teach the first barrier film and the second barrier film being separate films bonded together and the first barrier film and the second barrier being bonded together at a peripheral seam to join edges of the first barrier film to edges of the second barrier film.
Attention is drawn to Passke, which teaches an analogous bladder for an article of footwear. Passke teaches a first cushioning element (Claim 1 recites “The ornamental design for a bladder for a shoe sole, as shown and described”), wherein the cushioning element comprises a first barrier film (see annotated Fig.) and a second barrier film (see annotated Fig.) that are separate films bonded together (annotated figs. 3 and 4 show the first and second barrier films clearly being separate films before being joined to form a peripheral seam. Examiner notes that this “separate films” limitation is being treated as a product by process limitation. A product-by-process limitation adds no patentable distinction to the claim, and is unpatentable if the claimed product is the same as a product of the prior art (see MPEP § 2113). This is the case here, as the product of two separate films is a cushioning element with a peripheral seam), the first barrier film and the second barrier film enclosing an internal volume (figs. 3, 4, and 7 show the first and second barrier films enclosing an internal volume), the first barrier film and the second barrier are bonded together at a peripheral seam to join edges of the first barrier film to edges of the second barrier film (see annotated Fig.) (annotated figs. 3 and 4 show the first and second barrier films being joined to form a peripheral seam).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Rudy to include the teachings of Passke such that the first barrier film and the second barrier film are separate films bonded together and the first barrier film and the second barrier are bonded together at a peripheral seam to join edges of the first barrier film to edges of the second barrier film so as to allow the first and second barrier films to be made of different material and further to add aesthetic appeal and visual interest to the exterior surface of the first cushioning element.
Regarding Claim 15, Rudy teaches an article of footwear comprising: a forefoot region, a mid-foot region, a heel region opposite of the forefoot region, a medial side, and a lateral side opposite the medial side; a posterior end and an anterior end opposite the posterior end (annotated fig. 2 shows the regions, sides, and ends of the article of footwear, arranged in the manner as claimed); an upper (23) extending from the posterior end to the anterior end; and a sole structure (see annotated Fig.) extending from the posterior end to the anterior end (annotated fig. 2 shows the upper (23) and sole structure extending from the posterior to the anterior end), wherein the sole structure comprises: a midsole (29), wherein the midsole comprises a first partially enclosed cavity (see annotated Fig.) and a second partially enclosed cavity (see annotated Fig.) ; a first thermoformed cushioning element (27) disposed within the first partially enclosed cavity (paragraph [0028] teaches “fluid containing multi-chamber cushions 25 and 27 secured in midsole 29. The fluid containing cushions are preferably foam encapsulated as an integral part of midsole 29,” therein the first cushioning element (27) is clearly disposed within the first cavity), wherein the first cushioning element comprises a first barrier film (see annotated Fig.) and a second barrier film (see annotated Fig.) enclosing an internal volume (paragraph [0028] teaches “fluid containing multi-chamber cushions 25” and paragraph [0029] teaches “The cushion can be formed of any flexible material which is at least a partial barrier to the diffusion of at least one gas,” therein the cushioning element (27) clearly has a first and second barrier film and encloses an internal volume so as to contain the fluid); a second cushioning element (25) disposed within the second partially enclosed cavity (paragraph [0028] teaches “fluid containing multi-chamber cushions 25 and 27 secured in midsole 29. The fluid containing cushions are preferably foam encapsulated as an integral part of midsole 29,” therein the second cushioning element (25) is clearly disposed within the second cavity), wherein the second cushioning element includes a third barrier film (see annotated Fig.) and a fourth barrier film (see annotated Fig.) enclosing an internal volume (paragraph [0028] teaches “fluid containing multi-chamber cushions 25” and paragraph [0029] teaches “The cushion can be formed of any flexible material which is at least a partial barrier to the diffusion of at least one gas,” therein the second cushioning element (25) clearly has a third and fourth barrier film and encloses an internal volume so as to contain the fluid); one or more windows (see annotated Fig.) extending along an outer surface of the midsole (annotated fig. 2 show the windows extending along the outer surface of the midsole); and an outsole (31), wherein the outsole forms a ground-engaging surface of the article of footwear (fig. 2 shows the outsole (31) having a ground engaging surface).
Examiner notes that the limitation “thermoformed” is being treated as a product-by-process limitation. The determination of patentability in a product-by-process claim is based on the product itself, even though the claim may be limited and defined by the process. That is, the product in such a claim is unpatentable if it is the same as or obvious from the product of the prior art, even if the prior product was made by a different process. In re Thorpe, 777 F.2d 695, 697, 227 USPQ964, 966 (Fed. Cir. 1985). A product-by-process limitation adds no patentable distinction to the claim, and is unpatentable if the claimed product is the same as a product of the prior art (see MPEP § 2113). In the instant case, Rudy teaches “The barrier material can be comprised of an elastomer through which a first reactant compound is at least semi-permeable,” (paragraph [0014]), therein the cushions can clearly be thermoformed, as elastomers are materials capable of being thermoformed (see paragraph [0103] of instant specification)
Rudy does not teach wherein the first barrier film and the second barrier film are bonded directly to one another at a first web area and along a center peripheral seam that extends along an outer surface of the first thermoformed cushioning element and wherein the third barrier film and the fourth barrier film are coupled to one another at a second web area and along a peripheral seam that extends along an outer surface of the second thermoformed cushioning element.
Attention is drawn to Passke, which teaches an analogous bladder for an article of footwear. Passke teaches a first cushioning element (Claim 1 recites “The ornamental design for a bladder for a shoe sole, as shown and described”), wherein the cushioning element comprises a first barrier film (see annotated Fig.) and a second barrier film (see annotated Fig.) enclosing an internal volume (figs. 3, 4, and 7 show the first and second barrier films enclosing an internal volume), wherein the first barrier film and the second barrier are coupled to one another at a web area and along a center peripheral seam that extends along an outer surface of the cushioning element (see annotated Fig.) (annotated figs. 3 and 4 show the first and second barrier films being joined at a web area and to form a peripheral seam that is centrally located along an outer surface of the cushioning member).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Rudy to include the teachings of Passke such that he first barrier film and the second barrier film are bonded directly to one another at a first web area and along a center peripheral seam that extends along an outer surface of the first thermoformed cushioning element and wherein the third barrier film and the fourth barrier film are coupled to one another at a second web area and along a peripheral seam that extends along an outer surface of the second thermoformed cushioning element so as to allow the first and second barrier films to be made of different material and further to add aesthetic appeal and visual interest to the exterior surface of the first cushioning element.
Regarding Claim 21, Rudy teaches all of the limitations of the article of footwear of Claim 15 as discussed in the rejections above. Rudy further teaches wherein the first thermoformed cushioning element (25) comprises: a first pod (see annotated Fig.) extending in an anterior-posterior direction and disposed on the medial side; a second pod (see annotated Fig.) extending in an anterior-posterior direction and disposed on the medial side (annotated fig. 2 shows the first and second pods disposed on the medial side and extending in an anterior-posterior direction); a third pod (see annotated Fig.) extending in an anterior-posterior direction and disposed on the lateral side; a fourth pod (see annotated Fig.) extending in an anterior-posterior direction and disposed on the lateral side (annotated fig. 2 shows the third and fourth pods disposed on the lateral side and extending in an anterior-posterior direction).
Rudy does not teach six tubes extending in a medial-lateral direction, the six tubes disposed between the first pod, the second pod, the third pod, and the fourth pod; a plurality of web areas disposed between each of the six tubes and between each of the first pod, the second pod, the third pod, and the fourth pod, wherein the first barrier film and the second barrier film are bonded directly to one another at each of the plurality of web areas without an intervening gap; wherein the center peripheral seam and the plurality of web areas are co-planar and positioned in a first plane that bisects a thickness of the first thermoformed cushioning element; and wherein the first plane is visible from an exterior of the article of footwear through the one or more windows.
Attention is drawn to Passke, which teaches an analogous bladder for an article of footwear. Passke teaches a first cushioning element (Claim 1 recites “The ornamental design for a bladder for a shoe sole, as shown and described”), wherein the cushioning element comprises a first barrier film (see annotated Fig.) and a second barrier film (see annotated Fig.) enclosing an internal volume (figs. 3, 4, and 7 show the first and second barrier films enclosing an internal volume), wherein the first barrier film and the second barrier are coupled to one another at a web area and along a center peripheral seam that extends along an outer surface of the cushioning element (see annotated Fig.) (annotated figs. 3 and 4 show the first and second barrier films being joined at a web area and to form a peripheral seam that is centrally located along an outer surface of the cushioning member). Passke further teaches wherein the first thermoformed cushioning element comprises: a first pod (see annotated Fig.) extending in an anterior-posterior direction and disposed on the medial side; a second pod (see annotated Fig.) extending in an anterior-posterior direction and disposed on the medial side (annotated fig. 2 shows the first and second pods extending in an anterior-posterior direction on the medial side of the sole); a third pod (see annotated Fig.) extending in an anterior-posterior direction and disposed on the lateral side; a fourth pod (see annotated Fig.) extending in an anterior-posterior direction and disposed on the lateral side (annotated fig. 2 shows the third and fourth pods extending in an anterior-posterior direction on the lateral side of the sole); six tubes (see annotated Fig.) extending in a medial-lateral direction, the six tubes disposed between the first pod, the second pod, the third pod, and the fourth pod (annotated fig. 2 shows the six tubes extending in the medial lateral direction between the first, second, third, and fourth pods); a plurality of web areas (see annotated Fig.) disposed between each of the six tubes and between each of the first pod, the second pod, the third pod, and the fourth pod, wherein the first barrier film and the second barrier film are bonded directly to one another at each of the plurality of web areas without an intervening gap (annotated fig. 2 shows the web area disposed and extending between the first, second, third, and fourth pods and the central tubes, where the first and second barrier films are directly bonded to one another at the web area without an intervening gap); wherein the center peripheral seam and the plurality of web areas are co-planar and positioned in a first plane that bisects a thickness of the first thermoformed cushioning element (figs. 3 and 4 show the peripheral seam and web areas being co-planar and positioned in a first plane bisecting the thickness of the first thermoformed cushioning element); and wherein the first plane is visible from an exterior of the thermoformed cushioning element (figs. 3 and 4 show the first plane being visible from an exterior of the thermoformed cushioning element).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Rudy to include the teachings of Passke such that the first thermoformed cushioning element comprises six tubes extending in a medial-lateral direction, the six tubes disposed between the first pod, the second pod, the third pod, and the fourth pod; a plurality of web areas disposed between each of the six tubes and between each of the first pod, the second pod, the third pod, and the fourth pod, wherein the first barrier film and the second barrier film are bonded directly to one another at each of the plurality of web areas without an intervening gap; wherein the center peripheral seam and the plurality of web areas are co-planar and positioned in a first plane that bisects a thickness of the first thermoformed cushioning element; and wherein the first plane is visible from an exterior of thermoformed cushioning element so as to form discrete cushioning segments for providing support to the wearer’s foot and further to add to the aesthetic appeal of the cushioning element. Examiner notes that neither Rudy or Passke teach explicitly wherein the first plane is visible from an exterior of the article of footwear through at least one window, however as Rudy teaches the bladder being visible from a window, and the first plane is visible from the exterior of the bladder, the first plane of modified Rudy would clearly be visible from the exterior of the footwear through at least one window.
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Claim(s) 2-14 and 16-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Rudy (US 2004/0237346) in view of Passke (US D364036), and further in view of Allen et al. (US 5575088).
Regarding Claim 2, Rudy teaches all of the limitations of the article of footwear of Claim 1 as discussed in the rejections above. Rudy further teaches wherein the midsole further comprises a third window (see annotated Fig.) extending along a lateral side of the sole structure, and a fourth window (see annotated Fig.) extending along the lateral side of the sole structure (annotated fig. 2 shows the third and fourth windows extending along the lateral side of the sole structure); wherein the medial side of the sole structure is positioned opposite of the lateral side of the sole structure (annotated fig. 2 shows the medial and lateral sides of the sole being opposite one another).
Rudy does not explicitly teach or show a first window extending along a medial side of the sole structure, a second window extending along the medial side of the sole structure.
Attention is drawn to Allen et al. which teaches an analogous article of footwear. Allen et al. teaches an article of footwear (see fig. 1 ) comprising: an upper (see annotated Fig.); and a sole structure (see annotated Fig.), wherein the sole structure comprises: a midsole (37), wherein the midsole comprises at least one partially enclosed cavity (see annotated Fig.); a first cushioning element (see annotated Fig.) disposed within the at least one partially enclosed cavity, wherein the cushioning element comprises a first barrier film (34) and a second barrier film (36) enclosing an internal volume, the first barrier film and the second barrier adjoining to form a peripheral seam (col. 3 ll. 63-65 teaches “The upper sheet 34 is laid over the bottom sheet 35 and is bonded to the bottom sheet. The sheets are bonded together along a perimeter seam 36,” fig. 5 shows the internal volume being enclosed); a second cushioning element (see annotated Fig.) disposed within the at least one partially enclosed cavity, wherein the second cushioning element includes a third barrier film and a fourth barrier film enclosing an internal volume (fig. 2 shows the second cushioning element having the same structure as the first cushioning element, and therein also having a third and fourth barrier film that encloses an internal volume); and an outsole (46), wherein the outsole comprises a ground-engaging surface (fig. 1 shows the outsole (46) comprising a ground engaging surface). Allen et al. further teaches wherein the midsole further comprises a first window (see annotated Fig.) extending along a medial side of the sole structure, a second window (see annotated Fig.) extending along the medial side of the sole structure, a third window (see annotated Fig.) extending along a lateral side of the sole structure, and a fourth window (see annotated Fig.) extending along the lateral side of the sole structure; wherein the medial side of the sole structure is positioned opposite of the lateral side of the sole structure (annotated fig. 2 shows a first and second window on a medial side of the sole structure and a third and a fourth window on the opposite, lateral side of the sole structure).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Rudy to include the teachings of Allen et al. such that the sole structure includes a first window extending along a medial side of the sole structure, a second window extending along the medial side of the sole structure so as to allow the cushioning members to provide symmetrical support by having symmetrical window placements, and further to make the sole structure symmetric in its window placement, therein increasing the aesthetic appeal of the sole structure.
Regarding Claim 3, Rudy teaches all of the limitations of the article of footwear of Claim 2 as discussed in the rejections above. Rudy further teaches wherein the midsole further comprises a first foam component (see annotated Fig.) and a second foam component (see annotated Fig.), wherein the at least one cavity is defined by the first foam component, the second foam component, the first window, the second window, the third window, and the fourth window (annotated fig. 2 shows the first and second foam components, along with the third and fourth windows, defining the at least one cavity, wherein as Rudy has been modified above to have the first and second windows, the first and second windows would also clearly further define the at least one cavity).
Regarding Claim 4, Rudy teaches all of the limitations of the article of footwear of Claim 3 as discussed in the rejections above. Rudy further teaches wherein the first foam component (see annotated Fig.) contacts a first portion of an outer surface of the cushioning element (27), and the second foam component (see annotated Fig.) contacts a second portion of the outer surface of the first cushioning element (27) than the first foam component (annotated fig. 2 shows the first foam component contacting a first, upper portion of the cushioning element (27) and the second foam component contacting a second, lower portion of the cushioning element (27)).
Regarding Claim 5, Rudy teaches all of the limitations of the article of footwear of Claim 2 as discussed in the rejections above. Rudy further teaches a first pod (see annotated Fig.), the first pod is disposed adjacent to the first window, a second pod (see annotated Fig.), the second pod is disposed adjacent to the second window (annotated fig. 2 shows the first and second pods, and as Rudy has been modified to have a first and second window in the manner as set forth above, the first and second pods would clearly be disposed adjacent to the first and second windows, respectively), a third pod (see annotated Fig.), the third pod is disposed adjacent to the third window, a fourth pod (see annotated Fig.), the fourth pod is disposed adjacent to the fourth window (annotated fig. 2 shows the third and fourth pods being disposed adjacent to the third and fourth windows).
Rudy does not teach wherein the first cushioning element includes: the first pod extending from a first anterior medial end of the first pod to a second posterior medial end of the first pod; the second pod extending from a first anterior medial end of the second pod to a second posterior medial end of the second pod; the third pod extending from a first anterior lateral end of the third pod to a second posterior lateral end of the third pod; a fourth pod extending from a first anterior lateral end of the fourth pod to a second posterior lateral end of the fourth pod; one or more central tubes disposed between each of the first pod, the second pod, the third pod, and the fourth pod, and the one or more central tubes extend in a medial direction and a lateral direction; and a web area disposed between each of the first pod, the second pod, the third pod, the fourth pod, and the one or more central tubes.
Attention is drawn to Passke, which teaches an analogous bladder for an article of footwear. Passke teaches a first cushioning element (Claim 1 recites “The ornamental design for a bladder for a shoe sole, as shown and described”), wherein the cushioning element comprises a first barrier film (see annotated Fig.) and a second barrier film (see annotated Fig.) enclosing an internal volume (figs. 3, 4, and 7 show the first and second barrier films enclosing an internal volume), the first barrier film and the second barrier adjoining to form a peripheral seam (see annotated Fig.) (annotated figs. 3 and 4 show the first and second barrier films being joined to form a peripheral seam). Passke further teaches wherein the first cushioning element includes: a first pod (see annotated Fig.) extending from a first anterior medial end of the first pod to a second posterior medial end of the first pod (annotated fig. 2 shows the first pod extending from a first anterior medial end to a second posterior medial end); a second pod (see annotated Fig.) extending from a first anterior medial end of the second pod to a second posterior medial end of the second pod (annotated fig. 2 shows the second pod extending from a first anterior medial end to a second posterior medial end); a third pod (see annotated Fig.) extending from a first anterior lateral end of the third pod to a second posterior lateral end of the third pod (annotated fig. 2 shows the third pod extending from a first anterior lateral end to a second posterior lateral end); a fourth pod extending from a first anterior lateral end of the fourth pod to a second posterior lateral end of the fourth pod (annotated fig. 2 shows the fourth pod extending from a first anterior lateral end to a second posterior lateral end); one or more central tubes (see annotated Fig.) disposed between each of the first pod, the second pod, the third pod, and the fourth pod, and the one or more central tubes extend in a medial direction and a lateral direction (annotated fig. 2 shows the central tubes extending in a medial/lateral direction between the first, second, third, and fourth pods); and a web area (see annotated Fig.) disposed between each of the first pod, the second pod, the third pod, the fourth pod, and the one or more central tubes (annotated fig. 2 shows the web area disposed and extending between the first, second, third, and fourth pods and the central tubes).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Rudy to include the teachings of Passke such that the first cushioning element includes: the first pod extending from a first anterior medial end of the first pod to a second posterior medial end of the first pod; the second pod extending from a first anterior medial end of the second pod to a second posterior medial end of the second pod; the third pod extending from a first anterior lateral end of the third pod to a second posterior lateral end of the third pod; a fourth pod extending from a first anterior lateral end of the fourth pod to a second posterior lateral end of the fourth pod; one or more central tubes disposed between each of the first pod, the second pod, the third pod, and the fourth pod, and the one or more central tubes extend in a medial direction and a lateral direction; and a web area disposed between each of the first pod, the second pod, the third pod, the fourth pod, and the one or more central tubes so as to form discrete cushioning segments for providing support to the wearer’s foot and further to add to the aesthetic appeal of the cushioning element.
Regarding Claim 6, Rudy teaches all of the limitations of the article of footwear of Claim 5 as discussed in the rejections above. Rudy further teaches wherein each of the first cushioning element (27) and the second cushioning element (25) is configured to receive a fluid (paragraph [0028], “fluid containing multi-chamber cushions 25 and 27 secured in midsole 29. The fluid containing cushions are preferably foam encapsulated as an integral part of midsole 29.”).
Regarding Claim 7, Rudy teaches all of the limitations of the article of footwear of Claim 5 as discussed in the rejections above.
Rudy does not teach wherein each of the first pod, the second pod, the third pod, the fourth pod, and the one or more central tubes are in fluid communication with one another.
Attention is drawn to Passke, which teaches an analogous bladder for an article of footwear. Passke teaches a first cushioning element (Claim 1 recites “The ornamental design for a bladder for a shoe sole, as shown and described”), wherein the cushioning element comprises a first barrier film (see annotated Fig.) and a second barrier film (see annotated Fig.) enclosing an internal volume (figs. 3, 4, and 7 show the first and second barrier films enclosing an internal volume), the first barrier film and the second barrier adjoining to form a peripheral seam (see annotated Fig.) (annotated figs. 3 and 4 show the first and second barrier films being joined to form a peripheral seam), wherein the first cushioning element includes: a first pod (see annotated Fig.) extending from a first anterior medial end of the first pod to a second posterior medial end of the first pod (annotated fig. 2 shows the first pod extending from a first anterior medial end to a second posterior medial end); a second pod (see annotated Fig.) extending from a first anterior medial end of the second pod to a second posterior medial end of the second pod (annotated fig. 2 shows the second pod extending from a first anterior medial end to a second posterior medial end); a third pod (see annotated Fig.) extending from a first anterior lateral end of the third pod to a second posterior lateral end of the third pod (annotated fig. 2 shows the third pod extending from a first anterior lateral end to a second posterior lateral end); a fourth pod extending from a first anterior lateral end of the fourth pod to a second posterior lateral end of the fourth pod (annotated fig. 2 shows the fourth pod extending from a first anterior lateral end to a second posterior lateral end); one or more central tubes (see annotated Fig.) disposed between each of the first pod, the second pod, the third pod, and the fourth pod, and the one or more central tubes extend in a medial direction and a lateral direction (annotated fig. 2 shows the central tubes extending in a medial/lateral direction between the first, second, third, and fourth pods); and a web area (see annotated Fig.) disposed between each of the first pod, the second pod, the third pod, the fourth pod, and the one or more central tubes (annotated fig. 2 shows the web area disposed and extending between the first, second, third, and fourth pods and the central tubes). Passke further teaches wherein each of the first pod, the second pod, the third pod, the fourth pod, and the one or more central tubes are in fluid communication with one another (annotated fig. 2 shows the first, second, third, and fourth pods and the central tubes being in fluid communication with one another).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Rudy to include the teachings of Passke such that each of the first pod, the second pod, the third pod, the fourth pod, and the one or more central tubes are in fluid communication with one another so as to allow the fluid to freely move from one pod/tube to another in response to the wearer’s movements, therein increasing the responsiveness and support of the cushion.
Regarding Claim 9, Rudy teaches all of the limitations of the article of footwear of Claim 5 as discussed in the rejections above. Rudy does not teach wherein the peripheral seam is positioned such that the peripheral seam is visible from the exterior of the article of footwear through a lateral window of the article of footwear or a medial window of the article of footwear. However, as modified Rudy has a peripheral seam extending around the entirety of the peripheral edge of the first cushioning element and as the windows expose the peripheral side of the first cushioning element (see fig. 2 of Rudy), the peripheral seam would clearly be visible from the exterior of the article of footwear.
Regarding Claim 10, Rudy teaches all of the limitations of the article of footwear of Claim 5 as discussed in the rejections above.
Rudy does not teach wherein the first barrier film and the second barrier film are coupled to one another at the web area disposed between each of the first pod, the second pod, the third pod, the fourth pod, and the one or more central tubes, wherein the web area is positioned in a first plane that coincides with a second plane in which the peripheral seam is positioned.
Attention is drawn to Passke, which teaches an analogous bladder for an article of footwear. Passke teaches a first cushioning element (Claim 1 recites “The ornamental design for a bladder for a shoe sole, as shown and described”), wherein the cushioning element comprises a first barrier film (see annotated Fig.) and a second barrier film (see annotated Fig.) enclosing an internal volume (figs. 3, 4, and 7 show the first and second barrier films enclosing an internal volume), the first barrier film and the second barrier adjoining to form a peripheral seam (see annotated Fig.) (annotated figs. 3 and 4 show the first and second barrier films being joined to form a peripheral seam), wherein the first cushioning element includes: a first pod (see annotated Fig.) extending from a first anterior medial end of the first pod to a second posterior medial end of the first pod (annotated fig. 2 shows the first pod extending from a first anterior medial end to a second posterior medial end); a second pod (see annotated Fig.) extending from a first anterior medial end of the second pod to a second posterior medial end of the second pod (annotated fig. 2 shows the second pod extending from a first anterior medial end to a second posterior medial end); a third pod (see annotated Fig.) extending from a first anterior lateral end of the third pod to a second posterior lateral end of the third pod (annotated fig. 2 shows the third pod extending from a first anterior lateral end to a second posterior lateral end); a fourth pod extending from a first anterior lateral end of the fourth pod to a second posterior lateral end of the fourth pod (annotated fig. 2 shows the fourth pod extending from a first anterior lateral end to a second posterior lateral end); one or more central tubes (see annotated Fig.) disposed between each of the first pod, the second pod, the third pod, and the fourth pod, and the one or more central tubes extend in a medial direction and a lateral direction (annotated fig. 2 shows the central tubes extending in a medial/lateral direction between the first, second, third, and fourth pods); and a web area (see annotated Fig.) disposed between each of the first pod, the second pod, the third pod, the fourth pod, and the one or more central tubes (annotated fig. 2 shows the web area disposed and extending between the first, second, third, and fourth pods and the central tubes), wherein the first barrier film and the second barrier film are coupled to one another at the peripheral seam disposed around an entirety of the cushioning element (figs. 1-4 show the peripheral seam coupling the first and second barrier film around the entirety of the cushioning element). Passke further teaches wherein the first barrier film (see annotated Fig.) and the second barrier film (see annotated Fig.) are coupled to one another at the web area (see annotated Fig.) disposed between each of the first pod, the second pod, the third pod, the fourth pod, and the one or more central tubes (annotated figs. 2, 3, and 7 show the first and second barrier films being coupled to one another at the web area), wherein the web area is positioned in a first plane that coincides with a second plane in which the peripheral seam is positioned (annotated figs. 3-7 show the first plane of the web area coinciding with a second plane of the peripheral seam).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Rudy to include the teachings of Passke such that the first barrier film and the second barrier film are coupled to one another at the web area disposed between each of the first pod, the second pod, the third pod, the fourth pod, and the one or more central tubes, wherein the web area is positioned in a first plane that coincides with a second plane in which the peripheral seam is positioned so as to allow force from the wearer to be evenly dissipated across the web area and peripheral seam.
Regarding Claim 11, Rudy teaches all of the limitations of the article of footwear of Claim 5 as discussed in the rejections above.
Rudy does not teach wherein the web area is configured such that only co-planar portions of the web area are visible from an exterior of the article of footwear through at least one of the first window, the second window, the third window, or the fourth window.
Attention is drawn to Passke, which teaches an analogous bladder for an article of footwear. Passke teaches a first cushioning element (Claim 1 recites “The ornamental design for a bladder for a shoe sole, as shown and described”), wherein the cushioning element comprises a first barrier film (see annotated Fig.) and a second barrier film (see annotated Fig.) enclosing an internal volume (figs. 3, 4, and 7 show the first and second barrier films enclosing an internal volume), the first barrier film and the second barrier adjoining to form a peripheral seam (see annotated Fig.) (annotated figs. 3 and 4 show the first and second barrier films being joined to form a peripheral seam), wherein the first cushioning element includes: a first pod (see annotated Fig.) extending from a first anterior medial end of the first pod to a second posterior medial end of the first pod (annotated fig. 2 shows the first pod extending from a first anterior medial end to a second posterior medial end); a second pod (see annotated Fig.) extending from a first anterior medial end of the second pod to a second posterior medial end of the second pod (annotated fig. 2 shows the second pod extending from a first anterior medial end to a second posterior medial end); a third pod (see annotated Fig.) extending from a first anterior lateral end of the third pod to a second posterior lateral end of the third pod (annotated fig. 2 shows the third pod extending from a first anterior lateral end to a second posterior lateral end); a fourth pod extending from a first anterior lateral end of the fourth pod to a second posterior lateral end of the fourth pod (annotated fig. 2 shows the fourth pod extending from a first anterior lateral end to a second posterior lateral end); one or more central tubes (see annotated Fig.) disposed between each of the first pod, the second pod, the third pod, and the fourth pod, and the one or more central tubes extend in a medial direction and a lateral direction (annotated fig. 2 shows the central tubes extending in a medial/lateral direction between the first, second, third, and fourth pods); and a web area (see annotated Fig.) disposed between each of the first pod, the second pod, the third pod, the fourth pod, and the one or more central tubes (annotated fig. 2 shows the web area disposed and extending between the first, second, third, and fourth pods and the central tubes). Passke further teaches wherein the web area is configured such that only co-planar portions of the web area are visible from an exterior (figs. 3 and 4 show only co-planar portions of the web area being visible from an exterior of the cushioning element).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Rudy to include the teachings of Passke such that the web area is configured such that only co-planar portions of the web area are visible from an exterior so as to present a single, visually clean line to the wearer, therein improving the aesthetic appeal of the bladder. Examiner notes that neither Rudy or Passke teach explicitly wherein the coplanar portions are visible from an exterior of the article of footwear through at least one of the first window, the second window, the third window, or the fourth window, however as Rudy teaches the bladder being visible from the third and fourth windows, and the coplanar web portions are visible from the exterior of the bladder, the coplanar web portions of modified Rudy would clearly be visible from the exterior of the footwear through at least one window.
Regarding Claim 12, Rudy teaches all of the limitations of the article of footwear of Claim 2 as discussed in the rejections above.
Rudy does not teach wherein each of the first window, the second window, the third window, and the fourth window include a transparent material.
Attention is drawn to Allen et al. which teaches an analogous article of footwear. Allen et al. teaches an article of footwear (see fig. 1 ) comprising: an upper (see annotated Fig.); and a sole structure (see annotated Fig.), wherein the sole structure comprises: a midsole (37), wherein the midsole comprises at least one partially enclosed cavity (see annotated Fig.); a first cushioning element (see annotated Fig.) disposed within the at least one partially enclosed cavity, wherein the cushioning element comprises a first barrier film (34) and a second barrier film (36) enclosing an internal volume, the first barrier film and the second barrier adjoining to form a peripheral seam (col. 3 ll. 63-65 teaches “The upper sheet 34 is laid over the bottom sheet 35 and is bonded to the bottom sheet. The sheets are bonded together along a perimeter seam 36,” fig. 5 shows the internal volume being enclosed); a second cushioning element (see annotated Fig.) disposed within the at least one partially enclosed cavity, wherein the second cushioning element includes a third barrier film and a fourth barrier film enclosing an internal volume (fig. 2 shows the second cushioning element having the same structure as the first cushioning element, and therein also having a third and fourth barrier film that encloses an internal volume); and an outsole (46), wherein the outsole comprises a ground-engaging surface (fig. 1 shows the outsole (46) comprising a ground engaging surface),wherein the midsole further comprises a first window (see annotated Fig.) extending along a medial side of the sole structure, a second window (see annotated Fig.) extending along the medial side of the sole structure, a third window (see annotated Fig.) extending along a lateral side of the sole structure, and a fourth window (see annotated Fig.) extending along the lateral side of the sole structure; wherein the medial side of the sole structure is positioned opposite of the lateral side of the sole structure (annotated fig. 2 shows a first and second window on a medial side of the sole structure and a third and a fourth window on the opposite, lateral side of the sole structure). Allen et al. further teaches wherein each of the first window, the second window, the third window, and the fourth window include a transparent material (col. 5 ll. 38-40 teaches “A plastic holder 40 is then inserted and adhered in the apertures 42 to enable viewing of the toroid apparatus 10 from the outside of the midsole” and col. 5 ll. 51 teaches “transparent windows,” therein the windows clearly include a transparent material to allow the cushioning members to be viewed).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Rudy to include the teachings of Allen et al. such that each of the first window, the second window, the third window, and the fourth window include a transparent material so as to allow the cushioning member to be viewed from outsole the sole, adding visual appeal to the article of footwear (col. 5 ll. 48-51 teaches “the toroid apparatus 10 is constructed of transparent materials enabling the composite fluid contained in the apparatus to be viewed from outside the shoe sole through the transparent windows.”).
Regarding Claim 13, Rudy teaches all of the limitations of the article of footwear of Claim 5 as discussed in the rejections above.
Rudy does not teach wherein the one or more central tubes comprises six central tubes.
Attention is drawn to Passke, which teaches an analogous bladder for an article of footwear. Passke teaches a first cushioning element (Claim 1 recites “The ornamental design for a bladder for a shoe sole, as shown and described”), wherein the cushioning element comprises a first barrier film (see annotated Fig.) and a second barrier film (see annotated Fig.) enclosing an internal volume (figs. 3, 4, and 7 show the first and second barrier films enclosing an internal volume), the first barrier film and the second barrier adjoining to form a peripheral seam (see annotated Fig.) (annotated figs. 3 and 4 show the first and second barrier films being joined to form a peripheral seam), wherein the first cushioning element includes: a first pod (see annotated Fig.) extending from a first anterior medial end of the first pod to a second posterior medial end of the first pod (annotated fig. 2 shows the first pod extending from a first anterior medial end to a second posterior medial end); a second pod (see annotated Fig.) extending from a first anterior medial end of the second pod to a second posterior medial end of the second pod (annotated fig. 2 shows the second pod extending from a first anterior medial end to a second posterior medial end); a third pod (see annotated Fig.) extending from a first anterior lateral end of the third pod to a second posterior lateral end of the third pod (annotated fig. 2 shows the third pod extending from a first anterior lateral end to a second posterior lateral end); a fourth pod extending from a first anterior lateral end of the fourth pod to a second posterior lateral end of the fourth pod (annotated fig. 2 shows the fourth pod extending from a first anterior lateral end to a second posterior lateral end); one or more central tubes (see annotated Fig.) disposed between each of the first pod, the second pod, the third pod, and the fourth pod, and the one or more central tubes extend in a medial direction and a lateral direction (annotated fig. 2 shows the central tubes extending in a medial/lateral direction between the first, second, third, and fourth pods); and a web area (see annotated Fig.) disposed between each of the first pod, the second pod, the third pod, the fourth pod, and the one or more central tubes (annotated fig. 2 shows the web area disposed and extending between the first, second, third, and fourth pods and the central tubes). Passke further teaches wherein the one or more central tubes comprises six central tubes (fig. 2 shows six central tubes)
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Rudy to include the teachings of Passke such that the one or more central tubes comprises six central tubes so as to allow sufficient fluid flow between the pods disposed across the sole from one another.
Regarding Claim 14, Rudy teaches all of the limitations of the article of footwear of Claim 5 as discussed in the rejections above.
Rudy does not teach wherein a hollow interior of each of the one or more central tubes is visible from an exterior of the article of footwear through each of the first window, the second window, the third window, and the fourth window.
Attention is drawn to Passke, which teaches an analogous bladder for an article of footwear. Passke teaches a first cushioning element (Claim 1 recites “The ornamental design for a bladder for a shoe sole, as shown and described”), wherein the cushioning element comprises a first barrier film (see annotated Fig.) and a second barrier film (see annotated Fig.) enclosing an internal volume (figs. 3, 4, and 7 show the first and second barrier films enclosing an internal volume), the first barrier film and the second barrier adjoining to form a peripheral seam (see annotated Fig.) (annotated figs. 3 and 4 show the first and second barrier films being joined to form a peripheral seam), wherein the first cushioning element includes: a first pod (see annotated Fig.) extending from a first anterior medial end of the first pod to a second posterior medial end of the first pod (annotated fig. 2 shows the first pod extending from a first anterior medial end to a second posterior medial end); a second pod (see annotated Fig.) extending from a first anterior medial end of the second pod to a second posterior medial end of the second pod (annotated fig. 2 shows the second pod extending from a first anterior medial end to a second posterior medial end); a third pod (see annotated Fig.) extending from a first anterior lateral end of the third pod to a second posterior lateral end of the third pod (annotated fig. 2 shows the third pod extending from a first anterior lateral end to a second posterior lateral end); a fourth pod extending from a first anterior lateral end of the fourth pod to a second posterior lateral end of the fourth pod (annotated fig. 2 shows the fourth pod extending from a first anterior lateral end to a second posterior lateral end); one or more central tubes (see annotated Fig.) disposed between each of the first pod, the second pod, the third pod, and the fourth pod, and the one or more central tubes extend in a medial direction and a lateral direction (annotated fig. 2 shows the central tubes extending in a medial/lateral direction between the first, second, third, and fourth pods); and a web area (see annotated Fig.) disposed between each of the first pod, the second pod, the third pod, the fourth pod, and the one or more central tubes (annotated fig. 2 shows the web area disposed and extending between the first, second, third, and fourth pods and the central tubes). Passke further teaches wherein a hollow interior of each of the one or more central tubes is visible from an exterior (figs. 3 and 4 show a hollow interior of the central tubes being visible from an exterior of the cushioning element).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Rudy to include the teachings of Passke such that a hollow interior of each of the one or more central tubes is visible from an exterior so as to add visual interest and aesthetic appeal to the article of footwear. Examiner notes that while neither Rudy or Passke explicitly teach wherein the hollow interior of each of the one or more central tubes is visible from an exterior of the article of footwear through each of the first window, the second window, the third window, and the fourth window, as Passke teaches the hollow central tubes being visible from the exterior of the bladder and modified Rudy teaches the first cushioning element being visible from the first, second, third, and fourth windows, the hollow interior of the central tubes would clearly be visible from an exterior of the article of footwear through each of the first, second, third, and fourth windows.
Regarding Claim 16, Rudy teaches all of the limitations of the article of footwear of Claim 15 as discussed in the rejections above. Rudy further teaches wherein the one or more windows comprise a second window (see annotated Fig.), a fourth window (see annotated Fig.), a sixth window (see annotated Fig.), and a seventh window (see annotated Fig.) (annotated fig. 2 shows the second, fourth, and sixth windows disposed on the lateral side of the sole and the seventh window disposed at the lateral end).
Rudy does not explicitly teach a first window, a third window, and a fifth window.
Attention is drawn to Allen et al. which teaches an analogous article of footwear. Allen et al. teaches an article of footwear (see fig. 1 ) comprising: a forefoot region, a mid-foot region, a heel region opposite of the forefoot region, a medial side, and a lateral side opposite the medial side; a posterior end and an anterior end opposite the posterior end (annotated fig. 1 and 2 show the footwear having the regions, sides, and ends arranged as claimed); an upper (see annotated Fig.) extending from the posterior end to the anterior end; and a sole structure (see annotated Fig.) extending from the posterior end to the anterior end annotated fig. 1 shows the upper and the sole extending from the anterior to the posterior end), wherein the sole structure comprises: a midsole (37), wherein the midsole comprises a first partially enclosed cavity (see annotated Fig.) and a second partially enclosed cavity (see annotated Fig.) ; a first cushioning element (see annotated Fig.) disposed within the first partially enclosed cavity, wherein the cushioning element comprises a first barrier film (34) and a second barrier film (36) enclosing an internal volume, the first barrier film and the second barrier are coupled to one another at a peripheral seam that extends along an outer surface of the cushioning element (col. 3 ll. 63-65 teaches “The upper sheet 34 is laid over the bottom sheet 35 and is bonded to the bottom sheet. The sheets are bonded together along a perimeter seam 36,” fig. 5 shows the internal volume being enclosed and the peripheral seam extending along an outer surface); a second cushioning element (see annotated Fig.) disposed within the second partially enclosed cavity, wherein the second cushioning element includes a third barrier film and a fourth barrier film enclosing an internal volume wherein the third barrier film and the fourth barrier film are coupled to one another at a peripheral seam that extends along an outer surface of the cushioning element (fig. 2 shows the second cushioning element having the same structure as the first cushioning element, and therein also having a third and fourth barrier film that encloses an internal volume and that are coupled at a peripheral seam on an exterior of the cushioning element); one or more windows (42) extending along an outer surface of the midsole (figs. 1 and 2 show the windows (42) extending along an outer surface of the midsole); and an outsole (46), wherein the outsole comprises a ground-engaging surface (fig. 1 shows the outsole (46) comprising a ground engaging surface). Allen et al further teaches wherein the midsole further comprises a first window (see annotated Fig.) extending along a medial side of the sole structure, a second window (see annotated Fig.) extending along the medial side of the sole structure, a third window (see annotated Fig.) extending along a lateral side of the sole structure, and a fourth window (see annotated Fig.) extending along the lateral side of the sole structure; wherein the medial side of the sole structure is positioned opposite of the lateral side of the sole structure (annotated fig. 2 shows a first and second window on a medial side of the sole structure and a third and a fourth window on the opposite, lateral side of the sole structure). Allen et al. further teaches wherein the one or more windows comprise a first window, a second window, a third window, a fourth window, a fifth window, a sixth window (annotated fig. 2 shows six windows (42)).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Rudy to include the teachings of Allen et al. such that the midsole includes a first window, a third window, and a fifth window disposed across the sole from the second, fourth, and sixth windows so as to allow the cushioning members to provide symmetrical support by having symmetrical window placements, and further to make the sole structure symmetric in its window placement, therein increasing the aesthetic appeal of the sole structure.
Regarding Claim 17, Rudy teaches all of the limitations of the article of footwear of Claim 16 as discussed in the rejections above. Rudy further teaches wherein the second window (see annotated Fig.) is disposed substantially in the forefoot region on the lateral side, the fourth window (see annotated Fig.) is disposed substantially in the mid-foot region on the lateral side, the sixth window (see annotated Fig.) is disposed substantially in the heel region on the lateral side (annotated fig. 2 shows the second, fourth, and sixth windows disposed on the lateral side in the forefoot, midfoot, and heel regions, respectively), and the seventh window (see annotated Fig.) is disposed at the posterior end of the article of footwear in the heel region (annotated fig. 2 shows the seventh window disposed at the posterior end of the footwear in the heel region).
Rudy does not teach wherein the first window is disposed substantially in the forefoot region on the medial side, the third window is disposed substantially in the mid-foot region on the medial side, and the fifth window is disposed substantially in the heel region on the medial side.
Attention is drawn to Allen et al. which teaches an analogous article of footwear. Allen et al. teaches an article of footwear (see fig. 1 ) comprising: a forefoot region, a mid-foot region, a heel region opposite of the forefoot region, a medial side, and a lateral side opposite the medial side; a posterior end and an anterior end opposite the posterior end (annotated fig. 1 and 2 show the footwear having the regions, sides, and ends arranged as claimed); an upper (see annotated Fig.) extending from the posterior end to the anterior end; and a sole structure (see annotated Fig.) extending from the posterior end to the anterior end annotated fig. 1 shows the upper and the sole extending from the anterior to the posterior end), wherein the sole structure comprises: a midsole (37), wherein the midsole comprises a first partially enclosed cavity (see annotated Fig.) and a second partially enclosed cavity (see annotated Fig.) ; a first cushioning element (see annotated Fig.) disposed within the first partially enclosed cavity, wherein the cushioning element comprises a first barrier film (34) and a second barrier film (36) enclosing an internal volume, the first barrier film and the second barrier are coupled to one another at a peripheral seam that extends along an outer surface of the cushioning element (col. 3 ll. 63-65 teaches “The upper sheet 34 is laid over the bottom sheet 35 and is bonded to the bottom sheet. The sheets are bonded together along a perimeter seam 36,” fig. 5 shows the internal volume being enclosed and the peripheral seam extending along an outer surface); a second cushioning element (see annotated Fig.) disposed within the second partially enclosed cavity, wherein the second cushioning element includes a third barrier film and a fourth barrier film enclosing an internal volume wherein the third barrier film and the fourth barrier film are coupled to one another at a peripheral seam that extends along an outer surface of the cushioning element (fig. 2 shows the second cushioning element having the same structure as the first cushioning element, and therein also having a third and fourth barrier film that encloses an internal volume and that are coupled at a peripheral seam on an exterior of the cushioning element); one or more windows (42) extending along an outer surface of the midsole (figs. 1 and 2 show the windows (42) extending along an outer surface of the midsole); and an outsole (46), wherein the outsole comprises a ground-engaging surface (fig. 1 shows the outsole (46) comprising a ground engaging surface). Allen et al further teaches wherein the midsole further comprises a first window (see annotated Fig.) extending along a medial side of the sole structure, a second window (see annotated Fig.) extending along the medial side of the sole structure, a third window (see annotated Fig.) extending along a lateral side of the sole structure, and a fourth window (see annotated Fig.) extending along the lateral side of the sole structure; wherein the medial side of the sole structure is positioned opposite of the lateral side of the sole structure (annotated fig. 2 shows a first and second window on a medial side of the sole structure and a third and a fourth window on the opposite, lateral side of the sole structure). Allen et al. further teaches wherein the one or more windows comprise a first window, a second window, a third window, a fourth window, a fifth window, a sixth window (annotated fig. 2 shows six windows (42)). Allen et al. further teaches wherein the first window is disposed substantially in the forefoot region on the medial side, the second window is disposed substantially in the forefoot region on the lateral side, the third window is disposed substantially in the mid-foot region on the medial side, the fourth window is disposed substantially in the mid-foot region on the lateral side, the fifth window is disposed substantially in the heel region on the medial side, the sixth window is disposed substantially in the heel region on the lateral side (annotated fig. 2 shows the second, fourth, and sixth windows disposed on the lateral side in the forefoot, midfoot, and heel regions, respectively and shows the first, third, and fifth windows disposed on the medial side in the forefoot, midfoot, and heel regions, respectively)
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Rudy to include the teachings of Allen et al. such that the first window is disposed substantially in the forefoot region on the medial side, the third window is disposed substantially in the mid-foot region on the medial side, and the fifth window is disposed substantially in the heel region on the medial side so as to allow the cushioning members to provide symmetrical support by having symmetrical window placements, and further to make the sole structure symmetric in its window placement, therein increasing the aesthetic appeal of the sole structure.
Regarding Claim 18, Rudy teaches all of the limitations of the article of footwear of Claim 17 as discussed in the rejections above.
Rudy does not explicitly teach wherein the peripheral seam of the first cushioning element is positioned centrally within the fifth window, the sixth window, and the seventh window. However, modified Rudy teaches the peripheral seam of the first cushioning element being a central peripheral seam, and further fig. 2 of Rudy shows the first cushioning element (25) being centered in the sixth, and seventh windows (and obviously the fifth window of modified Rudy), therein the peripheral seam of the first cushioning element would clearly be positioned centrally within the fifth, sixth, and seventh window. Additionally, or in the alternative, it would have been obvious to one of ordinary skill in the art to position the peripheral seam centrally within the fifth, sixth, and seventh windows the give the sole a balanced and clean look, improving the aesthetic appeal of the sole.
Regarding Claim 19, Rudy teaches all of the limitations of the article of footwear of Claim 17 as discussed in the rejections above.
Rudy does not explicitly teach wherein the fifth window, the sixth window, and the seventh window have a height of 20 mm. However, Rudy appears to show the fifth and seventh windows (and clearly the sixth window of modified Rudy) appear to have a height of around 20 mm. Further, the window height is considered to be a results effective variable. The windows must be high enough to allow sufficient visualization of the second cushioning member, but not so high so as to lose structural integrity of the sole structure. It would have been obvious to one having ordinary skill in the art at the time the invention was made to create the invention of the prior art with the fifth window, the sixth window, and the seventh window having a window height of 20 mm since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980). In the present invention, one would have been motivated to optimize the visibility of the cushioning member and the support of the sole structure.
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Claim(s) 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Rudy (US 2004/0237346) in view of Passke (US D364036), and further in view of Mitchell et al. (US 5713141)
Regarding Claim 20, Rudy teaches all of the limitations of the article of footwear of Claim 15 as discussed in the rejections above.
Rudy does not teach wherein the first barrier film and the second barrier film each includes a multi-layer film.
Attention is drawn to Mitchell et al., which teaches an analogous article of footwear. Mitchell et al. teaches an article of footwear (10) comprising: a forefoot region, a mid-foot region, a heel region opposite of the forefoot region, a medial side, and a lateral side opposite the medial side; a posterior end and an anterior end opposite the posterior end (figs. 1 and 2 show the article of footwear having the regions, sides, and ends arranged as claimed); an upper (12) extending from the posterior end to the anterior end; and a sole structure (14) extending from the posterior end to the anterior end (fig. 1 shows the upper (12) and sole (14) extending from the posterior to the anterior end of the footwear), wherein the sole structure comprises: a midsole (26), wherein the midsole comprises a first partially enclosed cavity (see annotated Fig.) and a second partially enclosed cavity (see annotated Fig.) (annotated fig. 2 shows the first and second partially enclosed cavities); a first cushioning element (see annotated Fig.) disposed within the first partially enclosed cavity, wherein the first cushioning element comprises a first barrier film and a second barrier film enclosing an internal volume (annotated fig. 2 shows the first cushioning element disposed within the first cavity; fig. 5 shows the first and second barrier films enclosing an internal volume); a second cushioning element (see annotated Fig.) disposed within the second partially enclosed cavity, wherein the second cushioning element includes a third barrier film and a fourth barrier film enclosing an internal volume (annotated fig. 2 shows the second cushioning element disposed within the second cavity; fig. 5 shows the third and fourth barrier films (identical to the first and second films) enclosing an internal volume). Martin et al. further teaches wherein the first barrier film and the second barrier film each includes a multi-layer film (fig. 5 shows the films being multi-layered films).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Rudy et al. to include the teachings of Mitchell et al. such that the first barrier film and the second barrier film each includes a multi-layer film so as to allow the cushions to hold a high pressured fluid for an extended period of time (abstract, “Products in the form of cushioning devices made from flexible membranes employing at least one layer including thermoplastic urethane and at least one layer of a copolymer of ethylene and vinyl alcohol are inflatable to a relatively high pressure. The cushioning devices maintain the internal inflatant pressure for extended periods of time by employing a phenomenon referred to in the industry as diffusion pumping.”).
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Response to Arguments
Applicant’s arguments with respect to claim(s) 1-7 and 9-21 have been considered but are moot because the new ground of rejection necessitated by amendment. Therefore, see aforementioned rejections for the argued missing limitations.
Regarding independent Claims 1 and 15, Applicant submits that Rudy and Passke do not teach a thermoformed cushioning elements, and therein the structural elements present from thermoforming are not present, and the claims are not met. Examiner disagrees. Applicant appears to point to separate first and second barrier layers prior to bonding being a structure of the cushioning element missing from Rudy and Passke. Examiner notes that this appears to be referring to an intermediate product, as the final product is a single cushioning element with a peripheral seam, which is taught by the combination of references set forth above. MPEP 2113 notes that “determination of patentability is based on the product itself.” Examiner submits that no structural differences between the product of the instant invention and the prior art have been set forth, only differences in the process. MPEP 2113 further notes "The Patent Office bears a lesser burden of proof in making out a case of prima facie obviousness for product-by-process claims because of their peculiar nature" than when a product is claimed in the conventional fashion. In re Fessmann, 489 F.2d 742, 744, 180 USPQ 324, 326 (CCPA 1974). Once the examiner provides a rationale tending to show that the claimed product appears to be the same or similar to that of the prior art, although produced by a different process, the burden shifts to applicant to come forward with evidence establishing a nonobvious difference between the claimed product and the prior art product. As the combination of Rudy and Passke teach all of the claimed limitations set forth above, the 35 U.S.C. 103 rejection is maintained.
Applicant also submits that Passke is a design patent focused only on ornamental appearance and cannot supply the missing structural teachings of Rudy. Examiner notes that drawings, including those in design patents, can be used as prior art (MPEP 2125).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to HALEY A SMITH whose telephone number is (571)272-6597. The examiner can normally be reached Monday - Thursday 7:00 am - 5:00 pm.
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/HALEY A SMITH/Primary Examiner, Art Unit 3732