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 .
DETAILED ACTION
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 December 10, 2025 has been entered.
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 (i.e., changing from AIA to pre-AIA ) 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.
1. Claim(s) 1-6, 9-10, 13-14, and 21-22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fogg (US 2020/0138147) in view of Xanthos (US 2016/0302515).
Regarding Claim 1, Fogg discloses an article of footwear comprising: an upper (20) defining an ankle opening (12) configured to receive a foot (para.29); a sole structure (30) including a midsole (31) and an outsole (33), the sole structure coupled to the upper (as seen in Fig.1) and including a plurality of channels (51,52,53) wherein a portion of the midsole engages with a portion of the outsole to define at least one channel of the plurality of channels (para.38; as seen in Fig.7-9), wherein the outsole includes at least one protrusion (81; para.63); a panel (portions of 22,23); and a strap (41) having a first end (end of 41 attached to the hook portion of 43 or 46), a second end (46 or end of 41 attached to the hook portion of 43) opposite the first end, and a body portion (41 between the first & second ends) extending between the first end and the second end routed through each channel of the plurality of channels included in the sole structure and surrounding the upper (as seen in Fig.1, 2 & 7), wherein the strap is routed above the at least one protrusion (as seen in Fig.4 & 8). Fogg does not disclose the upper defining a throat; and the panel movable between an open position in which the panel exposes a portion of the throat and a closed position in which the panel covers the portion of the throat. However, Xanthos teaches an upper (102) defining an ankle opening (114) and a throat (628; para.85); and a panel (132) movable between an open position (as seen in Fig.9) in which the panel exposes a portion of the throat and a closed position (as seen in Fig.4) in which the panel covers the portion of the throat.
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have formed the upper of Fogg to include a throat opening and a panel, as taught by Xanthos, in order to provide a throat opening with easier access for inserting and removing a user’s foot from the upper, and a panel that protects the upper from abrasion and wear-and-tear during use.
Regarding Claim 2, Fogg discloses an article of footwear of claim 1, wherein the body portion extends through a first channel (51) of the plurality of channels, around the upper, and through a second channel (52) of the plurality of channels (as seen in Fig.1, 2 & 7).
Regarding Claim 3, Fogg discloses an article of footwear of claim 2, wherein the body portion of the strap extends through the first channel (51), around the upper, and through the second channel (52) in sequence (as seen in Fig.1, 2 & 7).
Regarding Claim 4, Fogg discloses an article of footwear of claim 1, wherein each channel of the plurality of channels (51,52,53) extends from a first side (i.e. medial side) of the sole structure to a second side (i.e. lateral side) of the sole structure (as seen in Fig.7).
Regarding Claim 5, Fogg discloses an article of footwear of claim 1, wherein the body portion (41 between the first & second ends) of the strap is routed around the upper (as seen in Fig.1, 2 & 7).
Regarding Claim 6, Fogg discloses an article of footwear of claim 5, wherein the strap (41) is configured to be translated in a first direction (i.e. positioned through 43) to transition the article of footwear into a tightened state and a second direction (i.e. removed from 43) to transition the article of footwear into a loosened state (para.36; as seen in Fig.1).
Regarding Claim 9, When in combination, Fogg and Xanthos teach an article of footwear of claim 1, wherein the body portion of the strap (Fogg: 41) forms an x-shaped intersection with itself (Fogg: as seen in Fig.2) proximate the throat (Fogg as modified with Xanthos).
Regarding Claim 10, Fogg discloses an article of footwear comprising: an upper (20) defining an ankle opening (12) configured to receive a foot (para.29); a sole structure (30) coupled to the upper (as seen in Fig.1) and including a plurality of channels (51,52,53)(para.38; as seen in Fig.7); a panel (portions of 22,23); and a strap (41) having a first end (end of 41 attached to the hook portion of 43), a second end (46) opposite the first end, and a body portion (41 between the first & second ends) extending between the first end and the second end routed through each channel of the plurality of channels included in the sole structure and surrounding the upper (as seen in Fig.1, 2 & 7), wherein the first end includes a first fastener (i.e. loop of 41 that attaches to hook portion of 43) fixed to the first end and the second end (46) includes a second fastener (43) fixed (i.e. 41 threaded through buckle 43 is “fixed”, inasmuch as has been claimed by Applicant, as 41 is secured to 43) to the second end and configured to selectively engage the first fastener (para.36; as seen in Fig.1), wherein the first end (end of 41 attached to the hook portion of 43) is disposed on a lateral side (22) of a midfoot region of the upper (see annotated Figure below).
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Fogg does not disclose the upper defining a throat; and the panel movable between an open position in which the panel exposes a portion of the throat and a closed position in which the panel covers the portion of the throat. However, Xanthos teaches an upper (102) defining an ankle opening (114) and a throat (628; para.85); and a panel (132) movable between an open position (as seen in Fig.9) in which the panel exposes a portion of the throat and a closed position (as seen in Fig.4) in which the panel covers the portion of the throat.
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have formed the upper of Fogg to include a throat opening and a panel, as taught by Xanthos, in order to provide a throat opening with easier access for inserting and removing a user’s foot from the upper, and a panel that protects the upper from abrasion and wear-and-tear during use.
Regarding Claim 13, Fogg discloses an article of footwear of claim 10, wherein the second end is disposed on a lateral side (22) of the upper (as seen in Fig.1).
Regarding Claim 14, When in combination, Fogg and Xanthos teach an article of footwear of claim 10, wherein the first fastener and the second fastener (Fogg: i.e. loop of 41 attached to hook portion of 43) are configured to secure the panel in the closed position (Fogg as modified with Xanthos).
Regarding Claim 21, Fogg discloses an article of footwear of claim 1, wherein the at least one protrusion (i.e. center 81, seen below with dashed line) extends from a lateral side of the sole structure to a medial side of the sole structure (as seen in the annotated Figure below, the indicated 81 is located at the centerline of the shoe sole and extends both on the lateral side and the medial side of the centerline).
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Regarding Claim 22, Fogg discloses an article of footwear of claim 21, wherein the strap (41) is disposed between the midsole (31) and the outsole (33) and extends above the at least one protrusion (as seen in Fig.8).
2. Claim(s) 15-18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fogg (US 2020/0138147) in view of Zadnik (US 2016/0270484), and in further view of Urie (US 6,637,130).
Regarding Claim 15, Fogg discloses an article of footwear comprising: an upper (20) defining an ankle opening (12) configured to receive a foot (para.29); a sole structure (30) coupled to the upper (as seen in Fig.1) and including a plurality of channels (51,52,53)(para.38; as seen in Fig.7); a panel (portions of 22,23); and a strap (41) having a first end (end of 41 attached to the hook portion of 43), a second end (46) opposite the first end, and a body portion (41 between the first & second ends) extending between the first end and the second end routed through each channel of the plurality of channels included in the sole structure and surrounding the upper (as seen in Fig.1, 2 & 7). Fogg does not disclose the upper defining a throat; and the panel movable between an open position in which the panel exposes a portion of the throat and a closed position in which the panel covers the portion of the throat; and the panel includes an inner surface including a single aperture, with the second end routed through the single aperture included in the panel. However, Zadnik teaches an upper (102) defining an ankle opening (114) and a throat (i.e. throat opening around 122); and a panel (122) movable between an open position (i.e. when tongue is pulled open & laces loose) in which the panel exposes a portion of the throat and a closed position (as seen in Fig.3) in which the panel covers the portion of the throat; and footwear with the panel (122) includes an inner surface (i.e. surface of 122 that faces the aperture layer is an inner surface, inasmuch as has been claimed by Applicant) including a single aperture (aperture seen on 122 through which 126 extends), with an end of the strap (126) routed through the aperture in the panel (as seen in Fig.2-3).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have formed the upper of Fogg to include a throat opening and a panel with an aperture, as taught by Zadnik, in order to provide a throat opening with easier access for inserting and removing a user’s foot from the upper, and a panel that protects the upper from abrasion and wear-and-tear during use, allowing the strap to be firmly held against the panel so that it does not become tangled with other straps.
Fogg and Zadnik disclose the invention substantially as claimed above. Fogg does not disclose wherein the sole structure includes at least one routing element disposed within at least one channel of the plurality of channels and configured to receive the strap. However, Urie teaches a sole structure (20,30,40) that includes at least one routing element (30) disposed within at least one channel of a plurality of channels (i.e. channels in 40 which receive 70,72) and configured to receive a strap (82)(as seen in Fig.3 & 4; Col.4, lines 9-45).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the sole of Fogg to include a routing element, as taught by Urie, in order to provide enhanced stability and support to a user’s footstrike.
Regarding Claim 16, When in combination, Fogg, Zadnik, and Urie further teach an article of footwear of claim 15, wherein the single aperture (Zadnik: aperture seen on 122 through which 126 extends) included in the panel (of modified Fogg) is disposed on a lateral side of the panel (Zadnik: as seen in Fig.3, the aperture is on a lateral half of the panel).
Regarding Claim 17, When in combination, Fogg, Zadnik, and Urie further teach an article of footwear of claim 15, wherein the body portion extends through a first channel (Fogg: 51) of the plurality of channels, around the upper, through the single aperture included in the panel (Fogg as modified by Zadnik), and through a second channel (Fogg: 52) of the plurality of channels (Fogg: as seen in Fig.1, 2 & 7).
Regarding Claim 18, Fogg discloses an article of footwear of claim 17, wherein the body portion of the strap extends through the first channel (51), around the upper, and through the second channel (52) in sequence (as seen in Fig.1, 2 & 7).
3. Claim(s) 23-26 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fogg (US 2020/0138147) and Xanthos (US 2016/0302515), in view of Urie (US 6,637,130).
Regarding Claim 23, Fogg and Xanthos disclose the invention substantially as claimed above. Fogg does not disclose wherein the sole structure includes at least one routing element disposed within the at least one channel of the plurality of channels and configured to receive the strap, wherein the at least one routing element includes a first portion contacting the midsole and a second portion contacting the outsole. However, Urie teaches a sole structure (20,30,40) that includes at least one routing element (30) disposed within at least one channel of a plurality of channels (i.e. channels in 40 which receive 70,72) and configured to receive a strap (82)(as seen in Fig.3 & 4; Col.4, lines 9-45); wherein the at least one routing element includes a first portion (i.e. top protruding portion) contacting the midsole and a second portion (i.e. downward protruding portion) contacting the outsole (as seen in Fig.4).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the sole of Fogg to include a routing element, as taught by Urie, in order to provide enhanced stability and support to a user’s footstrike.
Regarding Claim 24, When in combination, Fogg, Xanthos, and Urie teach an article of footwear of claim 23, wherein the at least one routing element defines a passage extending from the lateral side to the medial side, and wherein the strap is configured to translate through the passage (Urie: as seen in Fig.3 & 4; Col.4, lines 9-45).
Regarding Claim 25, Urie further teaches an article of footwear of claim 24, wherein the at least one routing element (30) includes a base portion (i.e. top protruding portion of 70 or 72) and a pair of side portions (i.e. downward protruding/vertical portions 35) extending from opposing sides of the base portion, wherein the side portions define a substantially L-shaped construct such that the at least one routing element defines a substantially C-shaped construct (i.e. 70,35 & 72,35 form L-shaped side portions and an overall C-shaped construct), the base portion and the pair of side portions defining the passage extending therethrough (as seen in Fig.3 & 4).
Regarding Claim 26, When in combination, Fogg, Xanthos, and Urie further teach article of footwear of claim 25, wherein the strap is encapsulated between the midsole and the outsole within the at least one routing element (as seen in Fig.6 & 8 of Fogg and Fig.3 & 4 of Urie).
Response to Arguments
In view of Applicant's amendment, the search has been updated, and newly modified grounds of rejection have been identified and applied. Applicant's arguments have been considered but, as they are drawn solely to the newly amended limitations, are moot in view of the newly modified ground(s) of rejection.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
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/MEGAN E LYNCH/Primary Examiner, Art Unit 3732