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 .
Claim Rejections - 35 USC § 112
Claims 4-5 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention.
` Claims 4-5 are inaccurate and indefinite. The “one-piece molded polymeric construction” as defined in claim 1 as part of the “foot covering” of the “upper” is not of leather construction as defined in claims 4-5.
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.
Claims 1,4-6 and 9-10 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2021/0204637 (Deepesh) in view of GB 2170445 (Langley)
Regarding claims 1,4-6 and 9-10, Deepesh discloses a moc-toe style boot (see Work boot 100b in figure 1B which inherently is a moc-toe style boot) comprising:
a sole (106); and
an upper, the upper including a foot covering portion connected to the sole and a lower leg covering portion (see “L” in the annotated figure below) located above the foot covering portion, wherein the foot covering portion includes a toe covering portion, a heel covering portion, and an instep covering portion (see figure 1B),
the foot covering portion defines a vertical toe wall (see “W” in the annotated figure below) of the toe covering portion and an upper vamp (see “V” in the annotated figure below) of the instep covering portion that extends to at least eyestays (see “E” in the annotated figure below) defined by the upper of the boot.
The boot is made out of leather construction and/or a combination of leather and synthetic materials (like PU, polyester, etc.); see last sentence of ¶0067.
Deepesh lacks teaching the vertical toe wall and the and the upper vamp defining at least a portion having a one-piece molded polymeric construction.
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Langley teaches an article of footwear wherein the toe wall (U-shaped outer portion shown in figure 2) of the toe covering portion and the upper vamp (area inside of the toe wall defined by the simulated lines of stitching 14) of the instep covering are constructed of one-piece molded polymeric construction (see figures 1-2 and at least page 1, lines 5-73).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to construct the vertical toe wall (W) and the upper vamp (V) of the boot as taught by Deepesh to be a one-piece molded polymeric construction, wherein the one-piece molded polymeric construction defines a vertical toe wall of the toe covering portion and an upper vamp of the instep covering portion, as taught by Langley, to provide a boot which is less expensive and still simulates leather in appearance.
Regarding claims 4-5; see the boot is made out of leather construction and/or a combination of leather and synthetic materials (like PU, polyester, etc.); see last sentence of ¶0067 of Deepesh.
Regarding claim 6: [6. The boot of claim 1, wherein the one-piece molded polymeric construction defines a faux edge formed by a notch between the vertical toe wall and at least a portion defining the upper vamp.]; see U-shaped stitching line (14) in Langley.
Regarding claims 9-10; see plurality of stitch lines (simulated stitching 14) in Langley which represent pre-molded stitch lines and stitch openings.
Claim(s) 2 is/are rejected under 35 U.S.C. 103 as being unpatentable over the references as applied to claim 1 above, and further in view of US 3605294 (Cunningham).
Cunningham teaches a footwear constructed out of thermoplastic polyurethane which resembles leather (at least see col. 1, lines 39-46, 64-69, col. 4, lines 26-41, col. 5, lines 13-22 and col. 8, lines 28-32 and Example 1 in columns 11,12. It would have been obvious to one having ordinary skill in the art at the time the invention was made to construct the one-piece polymeric construction of the boot as taught above out of TPU (Thermoplastic), as taught by Cunningham, to provide a material which is easily shaped. Moreover, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416. The claimed material merely amounts to a matter of engineering design choice and thus does not serve to patentable distinguish the claimed invention over the prior art. This view is buttressed by applicant's disclosure which does not reveal that the use of the specific material solves any particular problem and/or yields any unexpected results.
Claim(s) 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over the references as applied to claim 1 above, and further in view of US 2306937 (Diller).
Diller teaches providing a shoe upper with a surface texturing (“rough surface”) to resemble leather (see figures 1-4, page 1, and lines 3-10 on page 2).
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 the one-piece molded polymeric construction of the boot as taught above with a surface texturing, as taught by Diller, to further resemble leather.
Claim(s) 7,8 is/are rejected under 35 U.S.C. 103 as being unpatentable over the references as applied to claim 1 above, and further in view of US 5725823 (Finn).
Finn teaches providing an article of footwear (i.e. portion 11 made out of polymeric material) to be dyed to resemble leather (see col. 4, lines 4-13).
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 the one-piece molded polymeric construction of the boot as taught above to be dyed, as taught by Finn, to further resemble leather.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The prior art cited and not relied upon by the Examiner for the above rejections are considered to be pertinent in that the references cited are considered to be the nearest prior art to the subject matter defined in the claims as required by MPEP707.05.
Applicant is duly reminded that a complete response must satisfy the requirements of 37 C.F. R. 1.111, including:
-“The reply must present arguments pointing out the specific distinctions believed to render the claims, including any newly presented claims, patentable over any applied references.”
--“A general allegation that the claims define a patentable invention without specifically pointing out how the language of the claims patentably distinguishes them from the references does not comply with the requirements of this section.”
-Moreover, “The prompt development of a clear issue requires that the replies of the applicant meet the objections to and rejections of the claims. Applicant should also specifically point out the support for any amendments made to the disclosure. See MPEP 2163.06” MPEP 714.02. The “disclosure” includes the claims, the specification and the drawings.
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/Ted Kavanaugh/
Primary Patent Examiner
Art Unit 3732
Tel: (571) 272-4556