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 .
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.
Election/Restrictions
Applicant's election with traverse of Species III, Figures 4A-C and 5, and claim 20 in the reply filed on 12/18/2025 is acknowledged. The traversal is on the ground(s) that Species I, figures 1A-C and 2A-C and Species III, Figures 4A-C and 5 are not independent or distinct species. This is found persuasive.
Therefor, the restriction between Species I and Species III has been withdrawn.
The requirement is made FINAL.
Drawings
The drawings are objected to because dark surface shading is not viewable. The drawings are not viewable. 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.
Photographs are not accepted in utility applications unless a petition filed under 37 CFR 1.84(a)(2) is granted. Any such petition must be accompanied by the appropriate fee set forth in 37 CFR 1.17(h), one set of photographs, as appropriate, if submitted via the USPTO patent electronic filing system or three sets of color drawings or color photographs, as appropriate, if not submitted via the via USPTO patent electronic filing system, and, unless already present, an amendment to include the following language as the first paragraph of the brief description of the drawings section of the specification:
The patent or application file contains at least one drawing executed in color. Copies of this patent or patent application publication with color drawing(s) will be provided by the Office upon request and payment of the necessary fee.
Color photographs will be accepted if the conditions for accepting color drawings and black and white photographs have been satisfied. See 37 CFR 1.84(b)(2).
The instant inventions is capable of being accurately or adequately depicted by India ink drawings.
Claim Rejections - 35 USC § 102
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.
Claim(s) 1-3, 12-14, 17 and 19 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Huard et al. (US 9,615,625, herein after Huard.
With respect to claims 1 and 19, Huard discloses a support element (plate 14 underlies the midsole 12 and generally includes an arch portion 30 and a plurality of legs 32, 34, 36 and 38 that extend from the arch portion 30) configured to be arranged in a sole structure of a shoe (article of footwear 11 incorporation a sole assembly 10 as shown in figures 1-2), comprising:
a first portion (legs 34 & 38, see figures 2 & 9) associated with a lateral side of the sole structure (see figure 2), the first portion (leg 38) comprising a first segment (outer edge of leg 38, see figure 2), exhibiting a wave structure;
a second portion (legs 32 & 36, see figures 2 & 9) associated with a medial side of the sole structure, the second portion (36) comprising a second segment (inner edge of leg 36) exhibiting a uniform structure.
With respect to claim 2, Huard discloses wherein: the wave structure comprises at least one peak (area between the notches on outer edge of leg 38, see figure 9) and at least one valley (un-numbered notches on outer edge of leg 38).
With respect to claim 3, Huard discloses wherein the uniform structure (leg 36) comprises less peaks and/or less valleys than the wave structure (see figures 2 & 9).
With respect to claim 12, Huard discloses the first portion (leg 38) comprises a first component comprising the first segment, wherein the first component is elongate; and the second portion (leg 36) comprises a second component comprising the second segment, wherein the second the component is elongate (see figures 2 & 9).
With respect to claim 13, Huard discloses the first component (38) and the second component (36) are connected to one another (see figure 9).
With respect to claim 14, Huard discloses wherein at least one of the first component (38) and the second component (36) is configured to be arranged in a rim portion of the sole structure (see figure 2).
With respect to claim 17, Huard discloses a portion (legs 36, 38 and the rear part of arch portion 30) associated with a rear part of the sole structure, wherein the portion comprises at least one aperture (U-shaped opening created between legs 36 & 38 and the rear part of arch portion 30, see figure 9).
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.
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.
Claim(s) 4-11, 15-16 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Huard in view of Elder et al. (Pub. No. US 2018/0125148, herein after Elder).
Huard discloses the size, shape and configuration of forefoot legs 32 & 34 and heel legs 36 & 38 may vary from application to application. For example, the length, width and/or thickness of the legs 32, 34, 36 & 38 may be varied to control the performance characteristics of the plate 14. Huard as described above discloses all the limitations of the claims except for the specifics of the wave structure.
Elder discloses a support element having a wave structure (see paragraphs [0025] & [0026]). The flexible support member may have various size and dimensional features. When not flexing under weight of a wearer, a peak-to-peak amplitude dimension of a first adjacent wave trough and wave crest pair in the wave shaped portion may be at least three times greater than a thickness dimension of the rigid plate making up the first adjacent wave trough and wave crest pair (and in some examples, at least five times, at least eight times, at least 12 times, at least 15 times, or even at least 20 times greater). As other examples, when not flexing under weight of a wearer, a peak-to-peak amplitude dimension of a first adjacent wave trough and wave crest pair in the wave shaped portion may be at least 8 mm (and in some examples, at least 10 mm, at least 12 mm, at least 15 mm, at least 20 mm, or even at least 25 mm. In some examples, this peak-to-peak amplitude may be within a range of 8 to 30 mm or within a range of 10 to 25 mm. Therefore, it would have been obvious to one of ordinary skill in the art in view of Elder to make the wave structure of Huard as claimed, to have a desired degree of impact force attenuation, a desired degree of foot support member size/shape modification, a desired amount of compressive or tensile force application capability, etc.
With respect to claim 4, Huard as modified by Elder discloses wherein the wave structure can be modified to comprise peaks and valleys which are non-continuous, since Elder discloses that the properties of the wave structure can be modified to achieve desired degree of impact force attenuation, a desired degree of foot support member size/shape modification, a desired amount of compressive or tensile force application capability, etc.
With respect to claim 5, Huard as modified by Elder discloses wherein: a distance between two consecutive peaks of the wave structure can be modified to be at least 0.5 cm, since Elder discloses that the properties of the wave structure can be modified to achieve desired degree of impact force attenuation, a desired degree of foot support member size/shape modification, a desired amount of compressive or tensile force application capability, etc. (see paragraph [0026] of Elder).
With respect to claim 6, Huard as modified by Elder discloses wherein a distance between two consecutive peaks of the wave structure can be modified to be at most 8 cm, since Elder discloses that the properties of the wave structure can be modified to achieve desired degree of impact force attenuation, a desired degree of foot support member size/shape modification, a desired amount of compressive or tensile force application capability, etc.
With respect to claim 7, Huard as modified by Elder discloses wherein a height of a peak of the wave structure can be in a range from at least 0.1 cm to at most 4 cm, since Elder discloses that the properties of the wave structure can be modified to achieve desired degree of impact force attenuation, a desired degree of foot support member size/shape modification, a desired amount of compressive or tensile force application capability, etc. (see paragraph [0026])
With respect to claim 8, Huard as modified by Elder discloses wherein a depth of a valley of the wave structure can be modified to be in a range from at least 0.1 cm to at most 4 cm, since Elder discloses that the properties of the wave structure can be modified to achieve desired degree of impact force attenuation, a desired degree of foot support member size/shape modification, a desired amount of compressive or tensile force application capability, etc.
With respect to claim 9, Huard as modified by Elder discloses wherein: a height of a peak can decrease along the wave structure of the first segment from a mid portion of the sole structure towards a front part of the sole structure; and/or a depth of a valley can decrease along the wave structure of the first segment from the mid portion of the sole structure towards the front part of the sole structure. Elder discloses that the properties of the wave structure can be modified to achieve desired degree of impact force attenuation, a desired degree of foot support member size/shape modification, a desired amount of compressive or tensile force application capability, etc.
With respect to claim 10, Huard as modified by Elder discloses wherein a distance between two consecutive peaks can decrease along the wave structure of the first segment from a mid portion of the sole structure towards a front part of the sole structure; and/or a distance between two consecutive valleys can decrease along the wave structure of the first segment from the mid portion of the sole structure towards the front part of the sole structure. Elder discloses that the properties of the wave structure can be modified to achieve desired degree of impact force attenuation, a desired degree of foot support member size/shape modification, a desired amount of compressive or tensile force application capability, etc.
With respect to claim 11, Huard as modified by Elder discloses wherein: the wave structure of the first segment can extend in a direction of a longitudinal axis of the sole structure; and the uniform structure of the second segment can extend in the direction of the longitudinal axis of the sole structure; and the first segment and/or the second segment can be configured to be located in a front part of the sole structure.
With respect to claim 15, Huard as modified by Elder discloses the support element of claim 1, to further comprise a portion (arch portion 30) associated with a mid portion of the sole structure, but does not explicitly disclose wherein the portion associated with the mid portion comprises: a first aperture located within the first portion; and a second aperture located within the second portion. However, Huard discloses U-shaped apertures in the forward and rearward areas of the support element. It would have been obvious to one of ordinary skill in the art to add additional apertures in the support element of Huard/Elder as claimed, to reduce the weight of the support element further. The claim would have been obvious, since it has been held that mere duplication and rearranging of the essential working parts of a device involves only routine skill in the art. St. Regis Paper Co. V. Bemis Co., 193 USPQ 8 and In re Einstein, 8 USPQ 167.
With respect to claim 16, Huard as modified by Elder discloses wherein the portion associated with the mid portion can further comprise an intermediate section separating the first aperture from the second aperture. The claim would have been obvious, since it has been held that mere rearranging of the essential working parts of a device involves only routine skill in the art. In re Einstein, 8 USPQ 167.
With respect to claim 18, Huard as modified by Elder wherein: the intermediate section is in connection with a bottom component of the sole structure (the outsole assembly 10 generally includes a midsole 12, a plate 14 and an outsole 16); and a mid part of the support element is gapped from a top component of a midsole but in connection with a bottom component of the midsole. (he plate recess 56 may be essentially coextensive with the plate 14 and be of sufficient depth to cause the lower surface of the plate 14 to extend in alignment with the lower surface 52 of the midsole 12).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Shown are support elements arranged in sole structures analogous to applicant’s instant invention.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JILA M MOHANDESI whose telephone number is (571)272-4558. The examiner can normally be reached M-Thurs. 7:00-5:00 EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Alissa J Tompkins can be reached 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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/JILA M MOHANDESI/Primary Examiner, Art Unit 3732
JMM
01/13/2026