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
Response to Amendment
Applicant’s amendment filed May 4, 2026 has been received, Claims 1-6, 8-9, 11-15 and 19-25 are currently pending, with Claims 19-20 remaining withdrawn from prosecution at this time.
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.
1. Claim(s) 1-5, 8-9, 11-15, and 21 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kuo (US 2018/0042340).
Regarding Claim 1, Kuo discloses a knitted upper (103; para.44) for a shoe, comprising: a knitted inner collar (33,55/6,8) defining a circumferential first free edge of the upper and being adapted to completely surround a portion of a leg of a wearer of the shoe during use (see annotated Figure below); at least one knitted outer collar (35) at least partially surrounding the inner collar and defining a second free edge of the upper (see annotated Figure below), and wherein the inner collar and the at least one knitted outer collar are a one-piece knitted construction connected by at least some of knit loops of each of the knitted inner collar and the at least one knitted outer collar in the absence of an additional connection comprising glue, molten material, or sewing threads between the knitted inner collar and the at least one knitted outer collar (as seen in Fig.21 & 22 and 23 & 24; para.6 & 50-51, the inner and outer collars are seamlessly knit with connecting knit wales between the collar portions and the knit construction is performed without the use of any of the recited additional connections).
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Regarding Claim 2, Kuo discloses a knitted upper of claim 1, wherein the inner collar and the at least one knitted outer collar have been knitted in a single knitting process that incorporates partial knitting to form at least one of the inner collar or the at least one knitted outer collar (as seen in Fig.23 & 24; para.51, inasmuch as has been claimed by Applicant, since the inner collar is contoured with varying heights it would “incorporate partial knitting”, which merely amounts to shorter courses used to form the contoured height).
Regarding Claim 3, Kuo discloses a knitted upper of claim 1, wherein the at least one knitted outer collar (35) is formed in the shape of a flap or a lamella (as seen in Fig.24, 35 is a flap).
Regarding Claim 4, Kuo discloses a knitted upper of claim 1, wherein the inner collar (33,55/6,8) and the at least one knitted outer collar (35) overlap in a heel region (5) of the upper (as seen in Fig.23 & 24; para.51).
Regarding Claim 5, Kuo discloses a knitted upper of claim 1, wherein the inner collar (33,55/6,8) comprises a first yarn (para.44; i.e. non-elastic yarn) and the at least one knitted outer collar (35) comprises a second yarn (para.51; i.e. elastic yarn), wherein the first yarn is different from the second yarn (para.44 & 51).
Regarding Claim 8, Kuo discloses a knitted upper of claim 1, wherein the inner collar (33,55/6,8) is arranged proximal (i.e. forward of the ankle) to a foot of a wearer wearing a shoe comprising the knitted upper and, wherein the at least one knitted outer collar (35) is arranged distal (i.e. rear of the ankle) to the foot during use (as seen in Fig.24).
Regarding Claim 9, Kuo discloses a knitted upper of claim 1, wherein at least one of the inner collar or the at least one knitted outer collar (35) comprises an elastic yarn (para.51; i.e. elastic yarn).
Regarding Claim 11, Kuo discloses a knitted upper of claim 1, wherein at least one of a yarn tension, a knitting structure, a shape of, or an amount of padding in the inner collar (33,55/6,8) differs from a yarn tension, a knitting structure, a shape of, or an amount of padding in the at least one knitted outer collar (35)(as seen in Fig.23 & 24, the knitting structure & shapes of the collars are different from each other).
Regarding Claim 12, Kuo discloses a knitted upper of claim 1, wherein the at least one knitted outer collar (35) defines a circumferential second free edge of the upper which is adapted to surround a portion of a leg of a wearer of the shoe during use (see annotated Figure above).
Regarding Claim 13, Kuo discloses a knitted upper of claim 1, wherein the inner collar and the at least one knitted outer collar each are formed by a single knitted layer folded onto itself (as seen in Fig.23 & 24; para.51).
Regarding Claim 14, Kuo discloses a knitted upper of claim 1, wherein the distance (i.e. height of 6 & 8) between the free edge of the inner collar (33,55/6,8) and a location where the inner collar and the at least one knitted outer collar are joined (i.e. junction of 35 & 33,55/6,8 at their respective bottom portions) is larger than a distance (i.e. height of 35) between the free edge of the at least one knitted outer collar (35) and the location where the inner collar and the at least one knitted outer collar are joined (as seen in Fig.24).
Regarding Claim 15, Kuo discloses a knitted upper of claim 1, wherein the inner collar (33,55/6,8) is thicker (i.e. taller height is “thicker”, insofar as has been claimed by Applicant) at (6 & 8) than the at least one knitted outer collar (35)(as seen in Fig.24).
Regarding Claim 21, Kuo discloses a knitted upper (103; para.44) for a shoe, comprising: a first knitted collar element (33,55/6,8) defining a circumferential first free edge of the upper and being adapted to completely surround a first portion of a leg of a wearer of the shoe during use (see annotated Figure above); one or more second knitted collar elements (35) defining one or more second free edges of the upper proximate one or more second portions of the leg of the wearer and proximate the first collar element during use (see annotated Figure above); wherein the first collar element and the one or more second knitted collar elements are a one-piece knitted construction connected by at least some of knit loops of each of the knitted inner collar and the one or more second knitted collar elements in the absence of an additional connection comprising glue, molten material, or sewing threads between the first collar element and the one or more second knitted collar elements (as seen in Fig.23 & 24; para.6 & 51, the inner and outer collars are seamlessly knit with connecting knit wales between the collar portions and the knit construction is performed without the use of any of the recited additional connections); and wherein at least one of the first knitted collar element (33,55/6,8) or the one or more second collar elements comprises a height that varies along the length of the collar element (as seen in Fig.24 & annotated Figure above; 6 & 8 are taller than the rest of the circumferential edge).
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.
2. Claim(s) 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kuo (US 2018/0042340) in view of Brier (US 5,319,807).
Regarding Claim 6, Kuo discloses the invention substantially as claimed above. Kuo does not disclose wherein the first yarn is at least one of more moisture wicking than the second yarn or less abrasion resistant than the second yarn. However, Brier teaches a knit sock upper which contains a moisture wicking yarn (Col.3, lines 8-14).
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 first yarn of Kuo to be a moisture wicking yarn, as taught by Brier, in order to provide an upper that promotes air circulation between the sock and the shoe, so a user’s foot remains comfortable and dry.
3. Claim(s) 22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kuo (US 2018/0042340) in view of Kita (US 2024/0324717).
Regarding Claim 22, Kuo discloses a knitted upper of claim 1 wherein at least one of a front side height (i.e. front height of 35) or a rear side height of the at least one knitted outer collar is greater than a front side height (i.e. front side height of “8” at front end of 65) or a rear side height of the knitted inner collar (as seen in Fig.22). Kuo does not disclose a lateral height of the knitted inner collar is higher than a lateral height of the at least one knitted outer collar. However, Kita teaches a double layered knit upper (100; para.35) having a lateral height of a knitted inner collar (117) is higher than a lateral height of an at least one knitted outer collar (127)(para.51 & 57; as seen in Fig.3-4 & 17).
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 outer collar shape of Kuo to have a contour such that the front side height is greater than the front side height of the inner collar as well as the lateral height of the inner collar being higher than a lateral height of the outer collar, as taught by Kita, in order to provide inner and outer collars with the desired aesthetic appearance and optimum coverage to protect the ankle of a wearer.
4. Claim(s) 23-24 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kuo (US 2018/0042340) in view of Balega (https://www.dickssportinggoods.com/p/balega-hidden-comfort-no-show-running-socks-16ifouhddncmfrtsmapa/ 16ifouhddncmfrtsmapa?sku=27728321& srsltid=AfmBOopOnK1j9qX8r-hwK_tD4HKx1S49tywlaRnzM6Idis40vFjLchq1cSU).
Regarding Claim 23, Kuo discloses the invention substantially as claimed above. Kuo does not disclose a portion of the at least one knitted outer collar comprises a knit structural change such that the portion has a greater thickness than a remainder of the at least one knitted outer collar. However, Balgea teaches a knit sock with a collar; and a portion of the collar comprising a knit structural change such that the portion has a greater thickness than a remainder of the at least one knitted outer collar (as seen in the annotated Figure below).
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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 outer collar of Kuo to include a thicker, padded heel portion, as taught by Balega, in order to provide enhanced cushioning and protection to a user’s heel while wearing the shoe.
Regarding Claim 24, Kuo discloses a knitted upper (103; para.44) for a shoe, comprising: a first knitted collar element (33,55/6,8) defining a circumferential first free edge of the upper and being adapted to completely surround a first portion of a leg of a wearer of the shoe during use (see annotated Figure above); a second knitted collar (35) element defining one or more second free edges; wherein the first knitted collar element and the second knitted collar element are a one-piece knitted construction connected by at least some of knit loops of each of the first knitted collar element and the second knitted collar (as seen in Fig.23 & 24; para.6 & 51); and wherein at least one of a yarn tension, a height, or a shape in the first knitted collar element differs from a yarn tension, a height, or a shape in the second knitted collar element (as seen in Fig.23 & 24, the knitted heights & shapes of the collars are different from each other). Kuo does not disclose a portion of the second knitted collar comprises a knit structural change such that the portion has a greater thickness than a remainder of the at least one knitted outer collar. However, Balgea teaches a knit sock with a collar; and a portion of the collar comprising a knit structural change such that the portion has a greater thickness than a remainder of the knitted collar (as seen in the annotated Figure above).
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 outer collar of Kuo to include a thicker, padded heel portion, as taught by Balega, in order to provide enhanced cushioning and protection to a user’s heel while wearing the shoe. When in combination, Kuo and Balega teach the portion has a greater thickness than a remainder of the second knitted collar element and the first knitted collar element
5. Claim(s) 25 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kuo (US 2018/0042340) and Balega (https://www.dickssportinggoods.com/p/balega-hidden-comfort-no-show-running-socks-16ifouhddncmfrtsmapa/ 16ifouhddncmfrtsmapa?sku=27728321& srsltid=AfmBOopOnK1j9qX8r-hwK_tD4HKx1S49tywlaRnzM6Idis40vFjLchq1cSU), in view of Kita (US 2024/0324717).
Regarding Claim 25, Kuo and Balega disclose the invention substantially as claimed above. Kuo discloses a knitted upper wherein at least one of a front side height (i.e. front height of 35) or a rear side height of the at least one knitted outer collar is greater than a front side height (i.e. front side height of “8” at front end of 65) or a rear side height of the knitted inner collar (as seen in Fig.22). Kuo does not disclose a lateral height of the inner collar is higher than a lateral height of the outer collar. However, Kita teaches a double layered knit upper (100; para.35) having a lateral height of a knitted inner collar (117) is higher than a lateral height of a knitted outer collar (127)(para.51 & 57; as seen in Fig.3-4 & 17).
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 outer collar shape of Kuo to have a contour such that the front side height is greater than the front side height of the inner collar as well as the lateral height of the inner collar being higher than a lateral height of the outer collar, as taught by Kita, in order to provide inner and outer collars with the desired aesthetic appearance and optimum coverage to protect the ankle of a wearer.
Response to Arguments
In view of Applicant's amendment, the search has been updated, newly modified grounds of rejection and new prior art have been identified and applied. Applicant's arguments have been considered but are moot in view of the newly modified ground(s) of rejection and new grounds of rejection.
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 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
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