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 Claims
This Office Action is in response to the amendment filed 5/26/26. As directed by the amendment, claims 1 and 8 have been amended. Claims 1-16 are pending in this application.
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 5/26/26 has been entered.
CLAIM INTERPRETATION
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
Use of the word “means” (or “step for”) in a claim with functional language creates a rebuttable presumption that the claim element is to be treated in accordance with 35 U.S.C. § 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that § 112(f) (pre-AIA § 112, sixth paragraph) is invoked is rebutted when the function is recited with sufficient structure, material, or acts within the claim itself to entirely perform the recited function.
Absence of the word “means” (or “step for”) in a claim creates a rebuttable presumption that the claim element is not to be treated in accordance with 35 U.S.C. § 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that § 112(f) (pre-AIA § 112, sixth paragraph) is not invoked is rebutted when the claim element recites function but fails to recite sufficiently definite structure, material or acts to perform that function.
Claim elements in this application that use the word “means” (or “step for”) are presumed to invoke § 112(f) except as otherwise indicated in an Office action. Similarly, claim elements that do not use the word “means” (or “step for”) are presumed not to invoke § 112(f) except as otherwise indicated in an Office action.
In the instant case there does not appear to be any means for language in the claims and/or language to be considered under 35 U.S.C. 112(f).
Claim Rejections - 35 USC § 102 AIA
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.
Claims 1-16 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Borel US 20110302810 A1 (herein after Borel).
Regarding claim 1, Borel discloses an article of footwear (Abstract) comprising: a sole (200); an upper (300) attached to said sole (as seen in Figures 1 and 7), said upper including a foot opening (as seen in annotated Figures 1 and 2) and a forefoot opening (as seen in annotated Figures 1 and 2) extending from said foot opening (as seen in annotated Figures 1 and 2); and a vamp (320, 321, as seen in annotated Figure 7) attached to the upper (as seen in annotated Figures 1 and 7), said vamp including a plurality of sides, one of said plurality of sides being adjacent to said forefoot opening (as seen in annotated Figures 1 and 2) wherein said vamp stretches in at least one direction (paragraph 0037 as seen in annotated Figure 7) during contact of the sole with an underlying surface (paragraph 0007 and 0043 as seen in annotated Figure 7), and remaining sides of said plurality of said sides being surrounded by a portion (340) of said upper made with a static material (paragraph 0049 – static as defined by Merriam Webster is showing little change or movement, Borel discloses portion 320 is configured having greater elasticity than the elasticity of the front portion 310 and greater than the elasticity of the rear portion 340 – portions 310 and 340 are made from a material that is more static than portion 320).
[AltContent: arrow][AltContent: arrow][AltContent: textbox (A tongue attached to the upper and positioned in the forefoot opening and at least partially into the foot opening.)][AltContent: arrow][AltContent: arrow][AltContent: oval][AltContent: textbox (Foot opening)][AltContent: textbox (The vamp having a polygonal shape.)][AltContent: connector]
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[AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: textbox (Said plurality of sides being adjacent to said forefoot opening.)][AltContent: textbox (Said vamp including a plurality of sides.)][AltContent: arrow][AltContent: textbox (At least two sections that are separated from each other.)][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: connector][AltContent: ][AltContent: ][AltContent: textbox (Vamp)][AltContent: arrow][AltContent: ][AltContent: textbox (Central opening)][AltContent: ][AltContent: textbox (Forefoot opening)]
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[AltContent: arrow][AltContent: textbox (Vamp)]
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Regarding claim 2, Borel discloses wherein said vamp (320, 321 of Borel) is made with a stretchable material (paragraph 0037 of Borel).
Regarding claim 3, Borel discloses wherein said vamp (320, 321 of Borel) is a piece of material (paragraph 0037 of Borel) attached a front end of the upper (as seen in annotated Figures 1, 2 and 7 of Borel) and adjacent to said forefoot opening (as seen in annotated Figures 1, 2 and 7 of Borel) formed in the upper (as seen in annotated Figures 1, 2 and 7 of Borel).
Regarding claim 4, Borel discloses wherein the vamp (320, 321 of Borel) has a polygonal shape (as seen in annotated Figures 1, 2 and 7 of Borel).
Regarding claim 5, Borel discloses wherein the upper (300 of Borel) includes a tongue (204 of Borel) attached to a portion of the upper (paragraph 0067, as seen in annotated Figure 2 of Borel) and the vamp is separated from the tongue (as seen in annotated Figure 2 of Borel).
Regarding claim 6, Borel discloses wherein the vamp (320, 321 of Borel) is made with a material that stretches in at least two directions (paragraph 0037 of Borel) when the sole contacts the underlying surface (as seen in annotated Figure 7 of Borel).
Regarding claim 7, Borel discloses wherein the vamp (320, 321 of Borel) includes at least two sections (310, 311, 312, 313 of Borel) that are separated from each other (as seen in annotated Figure 2 of Borel).
Regarding claim 8, Borel discloses an article of footwear (Abstract) comprising: a sole (200); an upper (300) attached to said sole (200), said upper including a front end (as seen in annotated Figures 1, 2 and 7), a rear end and medial and lateral sides (as seen in annotated Figures 1, 2 and 7) extending between the front end and the rear end (as seen in annotated Figures 1, 2 and 7), the upper including a central opening (as seen in annotated Figures 1, 2 and 7) having a foot opening (as seen in annotated Figures 1, 2 and 7) and a forefoot opening (as seen in annotated Figures 1, 2 and 7); a tongue (204) attached to the upper (300) and positioned in the forefoot opening and at least partially into the foot opening (as seen in annotated Figures 1 and 2); and a vamp (320, 321) attached to the upper (300), said vamp (320, 321) extending from an end of including a plurality of sides (as seen in annotated Figures 1 and 2), one of said plurality of sides being adjacent to said forefoot opening (as seen in annotated Figures 1 and 2) and remaining sides of said plurality of sides (as seen in annotated Figures 1 and 2) being surrounded by a portion of said upper made with a static material (paragraph 0049 – static as defined by Merriam Webster is showing little change or movement, Borel discloses portion 320 is configured having greater elasticity than the elasticity of the front portion 310 and greater than the elasticity of the rear portion 340 – portions 310 and 340 are made from a material that is more static than portion 320), wherein said vamp (320, 321) is separated from the tongue (as seen in annotated Figures 1 and 2) and stretches in at least one direction (paragraph 0037, as seen in annotated Figure 7 - portion 320 has greater elasticity than the elasticity of the front portion 310 and the rear portion 340 of the upper - portion 320 more greatly elongates for a force of the same intensity) during contact of the sole with an underlying surface (paragraph 0007 and 0043 as seen in annotated Figure 7).
[AltContent: textbox (Forefoot opening)][AltContent: arrow][AltContent: textbox (Front end)][AltContent: arrow][AltContent: arrow][AltContent: textbox (Tongue)][AltContent: textbox (Medial side)][AltContent: textbox (Central opening)][AltContent: arrow][AltContent: ][AltContent: arrow][AltContent: textbox (Lateral side)]
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[AltContent: textbox (A tongue attached to the upper and positioned in the forefoot opening and at least partially into the foot opening.)][AltContent: arrow][AltContent: textbox (Rear end.)][AltContent: arrow][AltContent: arrow]
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Regarding claim 9, Borel discloses wherein said vamp (320, 321 of Borel) is made with a stretchable material (paragraph 0037 of Borel).
Regarding claim 10, Borel discloses wherein said vamp (320, 321 of Borel) is a piece of material attached a front end of the upper (as seen in annotated Figures 1 and 2 of Borel) and is adjacent to said forefoot opening (as seen in annotated Figures 1, 2 and 7 of Borel) formed in the upper (300, as seen in annotated Figures 1 and 2 of Borel).
Regarding claim 11, Borel discloses wherein the vamp (320, 321 of Borel) has a polygonal shape (as seen in annotated Figures 1, 2 and 7 of Borel).
Regarding claim 12, Borel discloses wherein the vamp (320, 321 of Borel) is made with a material (paragraph 0037 of Borel) that stretches in at least two directions (paragraph 0037 of Borel) when the sole contacts the underlying surface (paragraph 0007 and 0043, as seen in annotated Figure 7 of Borel).
Regarding claim 13, Borel discloses wherein the vamp (320, 321 of Borel) includes at least two sections (as seen in annotated Figure 2 of Borel) that are separated from each other (as seen in annotated Figure 2 of Borel).
Regarding claim 14, Borel discloses wherein the vamp (320, 321 of Borel) is made with a material that stretches in four directions (paragraph 0037 of Borel) when the sole contacts the underlying surface (paragraph 0007 and 0043, as seen in annotated Figure 7 of Borel).
Regarding claim 15, Borel discloses further comprising two vamps (as seen in annotated Figure 2 of Borel) that are separated from each other (as seen in annotated Figure 2 of Borel), said two vamps extending from an end of said forefoot opening (as seen in annotated Figure 2 of Borel).
[AltContent: arrow][AltContent: textbox (An end of said forefoot opening.)][AltContent: arrow][AltContent: arrow][AltContent: textbox (Two vamps)]
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Regarding claim 16, Borel discloses further comprising two vamps (as seen in annotated Figure 2 of Borel) that are separated from each other (as seen in annotated Figure 2 of Borel), said two vamps extending from an end of said forefoot opening (as seen in annotated Figure 2 of Borel).
Arguments
Applicant’s arguments have been fully considered but are not convincing. Applicant’s arguments are directed towards structural elements included in the amended claims and thus do not apply to the combinations of references used to teach the limitations of the amended claims in the current rejection and/or the manner in which prior art has been applied in the current rejection. In view of Applicant's amendments, the search has been updated, and a rejection on the amended claims is applied above.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CATHERINE M FERREIRA whose telephone number is (571)270-5916, fax number (571) 270-6916. The examiner can normally be reached on Monday - Thursday 9:00 am- 5:00 pm.
If attempts to reach the examiner by telephone are unsuccessful, please contact the examiner’s supervisor, ALISSA J. TOMPKINS, at (571) 272-3425. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Catherine M. Ferreira/
Examiner, Art Unit 3732
/ALISSA J TOMPKINS/Supervisory Patent Examiner, Art Unit 3732
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