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 .
Election/Restrictions
Claim 40 is withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on January 28, 2026. The traversal is on the ground(s) that Species 1-17 are not all independent or distinct as certain paragraphs of the Specification state certain structures of one Species “may be utilized” or “may be incorporated” into another Species. This is not found persuasive because the entire application contains a number of species that are patentably distinct from one another and include divergent claimed subject matter that separate the species. Additionally, Species Elections are based solely on Figures, not the various modifications disclosed in Applicant’s Specification that “may” or may not be included in the elected Species. In fact, were such structural combinations shown in the Figures, they would likely also have been identified as independent, distinct Species themselves. Applicant indicates that claims 21-39 are readable on the elected species. Accordingly, 40 is withdrawn from further consideration as being drawn to the non-elected inventions.
The requirement is still deemed proper and is therefore made FINAL
After a full review of Applicant’s disclosure, Claims 23, 28-29, 33, and 35-39 are also withdrawn from prosecution at this time. Claims 23 and 33 are withdrawn as the elected Species does not detail a second thread layer with a second plurality of thread lines that extend across a functional zone. Claims 28 and 29 are withdrawn as the elected Species fails to detail functional zones which delineate a toe box or heel counter and also meet the previously claimed qualification of thread lines extending tangential to the second boundary line; i.e. there are no thread lines in the toe box or heel counter that are tangential to a boundary line in that area. Claims 35-39 are withdrawn as the elected Species does not contain three boundary lines in the claimed configuration with the claimed thread extension locations.
Drawings
1. The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, “a second boundary line comprising a perimeter boundary of a functional zone” in Claim 21 and “the plurality of thread lines comprises 10 or more thread lines extending tangential to the second boundary line” in Claim 31 must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (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 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.
2. Claim(s) 21-22, 24-25, 27, 31-32, and 33 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Meschter (US 2007/0271822).
Regarding Claim 21, Meschter discloses an upper (30) for an article of footwear, the upper comprising: a thread pattern (of 44a,44c,44d) comprising: a first boundary line (i.e. biteline edge of 40/50) comprising a perimeter edge of the thread pattern; a second boundary line (31) comprising a perimeter boundary of a functional zone of the thread pattern or a perimeter edge of an opening in the thread pattern, the second boundary line comprising a curved shape (as seen in Fig.1 & 8E); and a thread layer (44a,42/44c,42/44d,42) comprising a plurality of thread lines (each of 42), wherein each of the plurality of thread lines extends between respective points (i.e. each end of 42 at the biteline edge of 40/50) on the first boundary line and extends tangential to and defines a portion of the second boundary line (as seen in Fig.8C-8H).
Regarding Claim 22, Meschter discloses an upper of claim 21, wherein each of the plurality of thread lines extends in a substantially straight line between the respective points on the first boundary line when the thread pattern is in an unlasted state (as seen in Fig.8C-8H).
Regarding Claim 24, Meschter discloses an upper of claim 21, wherein the second boundary line (31) comprises the perimeter edge of the opening (as seen in Fig.1 & 8E), and wherein the perimeter edge of the opening is surrounded by the plurality of thread lines such that the plurality of thread lines directly defines the entirety of the perimeter edge of the opening (lines of 42 in 44a & 44c "directly define the entirety of the perimeter edge of the opening" inasmuch as has been claimed by Applicant, in that they directly form part of the upper around the entirety of the perimeter edge; as seen in Fig.1,2, & 5).
Regarding Claim 25, Meschter discloses an upper of claim 21, wherein the plurality of thread lines comprises: a first thread line (top 42 in 44a), and a second thread line (bottom 42 in 44a), wherein the first thread line and the second thread line overlap each other at an overlap point, and wherein the first thread line is disposed at an angle relative to the second thread line (see annotated Figure below).
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Regarding Claim 27, Meschter discloses an upper of claim 25, wherein the first thread line and the second thread line are directly bonded to each other at the overlap point (para.55).
Regarding Claim 31, Meschter discloses an upper of claim 21, wherein the plurality of thread lines (each of 42) comprises 10 or more thread lines extending tangential to the second boundary line (as seen in Fig.1-2,5-6, 8C-8H & 8L).
Regarding Claim 32, Meschter discloses an upper of claim 21, wherein the second boundary line (31) comprises the perimeter edge of the opening, and wherein the thread pattern (of 44a,44c,44d) entirely surrounds the opening (Fig.1-2,5-6, 8C-8H & 8L).
Regarding Claim 34, Meschter discloses an upper of claim 21, wherein the thread pattern further comprises a plurality of anchor points (i.e. each doubled back end of 42 is an anchor point, inasmuch as has been claimed by Applicant) disposed adjacent the first boundary line (i.e. biteline edge of 40/50), and wherein a continuous thread wound around the plurality of anchor points forms the thread layer (as seen in Fig.8E-8H & 8L).
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.
3. Claim(s) 26 is/are rejected under 35 U.S.C. 103 as being unpatentable over Meschter (US 2007/0271822).
Regarding Claim 26, Meschter further discloses an upper of claim 25, wherein an angle of intersection at the overlap point of the first thread line and the second thread line is greater than or equal to 90 degrees (as seen in the annotated Figure above. Meschter does not explicitly teach the angle of intersection is less than or equal to 150 degrees. However, it would have been obvious to one having ordinary skill in the art before the effective filing date to have formed the angel of intersection of Meschter to be less than or equal to 150 degrees, in order to provide the upper with the desired aesthetic appearance for a user. Further, since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. See MPEP 2144.05.
Allowable Subject Matter
Claim 30 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims. Claim 30 is allowed as none of the prior art, alone or in combination, discloses the threads not being embroidered/stitched to the base layer. To modify Meschter to have the claimed subject matter would be improper hindsight reasoning based on Applicant’s own disclosure.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MEGAN E LYNCH whose telephone number is (571)272-3267. The examiner can normally be reached Monday to Friday, 8:00am-4:00pm EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Khoa Huynh can be reached at 571-272-4888. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MEGAN E LYNCH/Primary Examiner, Art Unit 3732