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 .
Response to Amendment
Applicant’s amendment filed on 6/9/2026 has been received; Claims 1-7 & 9-21 are pending.
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.
Claims 1-7 & 9-21 are rejected under 35 U.S.C. 103 as being unpatentable over Ostergard (US 2017/0079827) in view of McDonough (USPN 1,649,173) and Weingart (US 2015/0113831).
Regarding Claim 1, Ostergard discloses an adaptive footwear apparatus for accommodating an Ankle-Foot Orthosis (Figure 3), wherein the adaptive footwear apparatus comprises: a shoe body (12/10) configured to receive an Ankle-Foot Orthosis (AFO)(Figures 1-5), wherein the shoe body comprises an upper portion (upper, see annotated Figure 5 below) adapted to envelop at least a foot and an ankle of a user, wherein the shoe body comprises: an adjustable opening mechanism (Para. 37-39) positioned along at least a portion of the shoe body, wherein the adjustable opening mechanism comprises: one or more straps (106, 124 & 134) comprising one or more fasteners (108, 126 & 136); and one or more handles (handle being the end of the strap a user’s uses to tighten the opening); and a shoe sole (14/20) in contact with a base portion of the shoe body (Figure 5); a mailbox flap (112) configured to open on a horizontal plane and swing open to accommodate the AFO to be inserted into the shoe body (Figures 1-3) and a reinforcement element (22) configured to wrap around a closed mailbox flap and run along the entire length of the shoe body (Figure 3). Ostergard does not specifically disclose an internal dimension adjustment mechanism located within the shoe body. However, McDonough discloses an internal dimension adjustment mechanism (4 & 7) located within a shoe body (Figure 1), wherein the internal dimension adjustment mechanism is configured to adjust one or more internal dimensions of the shoe body selectively modify at least two different internal dimensions of the shoe body after the AFO is inserted (Page 2, lines 7-38), the internal dimension adjustment mechanism being configured to provide volumetric compensation specific to an AFO geometry and wherein the internal dimension adjustment mechanism is mechanically isolated from the adjustable opening mechanism such that actuation of the internal dimension adjustment mechanism does not alter a circumference of the upper portion (Figure 1, Page 2, lines 7-38). It would have been obvious to one of ordinary skill in the art before the effective filing date to include an internal dimension adjustment mechanism, as taught by McDonough, to the footwear of Ostergard, in order to provide further adjustment of a user’s foot within the shoe.
The combination of Ostergard and Irving do not specifically disclose the adaptive footwear apparatus is comprised of neoprene having a thickness of 5mm and weighs less than 453.6 grams. However, Weingart disclose the use of neoprene because of its lightweight characteristics (Para. 35). It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the material of the footwear as claimed, and taught by Weingart for lightness and thickness since it is well 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. Also, such a modification would be considered a mere choice of preferred material that is on the basis of its suitability for the intended use. In other words, using neoprene would have been an "obvious to try" approach because the use of such a material that is not of innovation but of ordinary skill and common sense. Also, It would have been obvious to one having ordinary skill in the art at the time the invention was made to experiment with different weight and thickness for footwear in order to achieve an optimal configuration for the purpose of providing a comfortable footwear, since discovering the optimum or workable ranges of the weight and thickness involves only routine skill in the art.
Regarding Claim 2, the combination of Ostergard and Irving disclose a reinforcement element (90), wherein the reinforcement element wraps around the upper portion of the shoe body (Figure 5) and comprises one or more fasteners (Figures 3 & 5).
Regarding Claims 3 & 4, Ostergard discloses the reinforcement element comprises neoprene (Para. 36). Ostergard does not specifically disclose the reinforcement element comprises a rubberized fabric. It, however, would have been obvious to one of ordinary skill in the art before the effective filing date to modify the material of the reinforcement element as claimed, since it is well 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. Also, such a modification would be considered a mere choice of preferred material that is on the basis of its suitability for the intended use. In other words, using rubberized fabric would have been an "obvious to try" approach because the use of such a material that is not of innovation but of ordinary skill and common sense.
Regarding Claim 5, the combination of Ostergard and Irving disclose the shoe body comprises a plurality of support elements (loops 118, 120, 128, 130, 54, 56, 58, 78, 80, 73 or 22/28) positioned within the shoe body to provide additional support and alignment for the AFO and the ankle of a user (Figures 1-5).
Regarding Claim 6, the combination of Ostergard and Irving disclose an inner lining comprising a contoured cushioning material (38, 48, 62).
Regarding Claim 7, the combination of Ostergard and Irving do not specifically disclose the one or more fasteners comprise fasteners that are configured to be fastened and unfastened using less than 20 kPa of force. It, however, would have been obvious to one having ordinary skill in the art at the time the invention was made to experiment with different forces for fastening and unfastening in order to achieve an optimal configuration for the purpose of providing a secure connection, since discovering the optimum or workable ranges of the force involves only routine skill in the art.
Regarding Claim 9, the combination of Ostergard and Irving disclose the shoe sole comprises a non-slip stable rocker sole (14/20).
Regarding Claim 10, the combination of Ostergard and Irving disclose a vamp point strap (12 at the instep) comprising the one or more fasteners (22/28) and located on the shoe body (Figures 3-5).
Regarding Claim 11, the combination of Ostergard and Irving disclose the shoe body further comprises a mailbox back (98, 90 or 90), wherein the mailbox back is configured to fold open when the one or more fasteners are unfastened (Para. 36 & 37).
Regarding Claim 12, the combination of Ostergard and Irving disclose the mailbox back comprises a plurality of panels (98 & 90).
Regarding Claim 13, the combination of Ostergard and Irving disclose the mailbox back comprises one panel (90).
Regarding Claim 14, the combination of Ostergard and Irving disclose at least a handle of the one or more handles (handle being the end of the strap a user’s uses to tighten the opening) is located at a proximal end of the mailbox back.
Regarding Claim 15, the combination of Ostergard and Irving disclose the mailbox back comprises: a mailbox flap (90); connecting fabric (42), wherein the connecting fabric connects the mailbox flap to the shoe body (Figures 1-5); and a seam (“stitching” Para. 36), wherein the seam is configured to act as a folding point for the connecting fabric, enabling the mailbox flap to lie flush with the shoe body (Figures 1-5, the seam is capable of providing the function as claimed).
Regarding Claim 16, the combination of Ostergard and Irving disclose the sole comprises an outsole (14); the mailbox back connects to the shoe body above the outsole (Figures 1-5); and the mailbox back is configured to fold open up to at least 180 degrees (Figures 1-5, the back is capable of providing the function as claimed).
Regarding Claim 17, the combination of Ostergard and Irving disclose the one or more straps are positioned to overlap one another such that a first strap of the one or more straps is located beneath a second strap of the one or more straps, when the one or more straps are in a fastened position (Figures 1-5).
Regarding Claim 18, the combination of Ostergard and Irving disclose the one or more straps comprise: a first set of straps (106/104), wherein the first set of straps comprises:a first strap (106); and a second strap (104) located opposite of the first strap.
Regarding Claim 19, the combination of Ostergard and Irving disclose the one or more fasteners comprises one or more of a hook and loop closure, one or more magnets, laces, or a buckle system (Para. 37).
Regarding Claim 20, the combination of Ostergard and Irving disclose a leg portion (98) attached to the shoe body, wherein the leg portion: comprises flexible material; and is configured to conform to a user's leg (Figures 1-5).
Regarding Claim 21, the combination of Ostergard and Irving disclose the mailbox back may connect anywhere from 50% to 70% of a shoe body’s back (Figures 1-3, the connection appears to connect from 50% to 70% of a shoe body’s back). Also, it would have been obvious to one having ordinary skill in the art at the time the invention was made to experiment with different ranges of connection for the shoe body’s back in order to achieve an optimal configuration for the purpose of providing a secure connection, since discovering the optimum or workable ranges of the connection involves only routine skill in the art.
PNG
media_image1.png
498
727
media_image1.png
Greyscale
Response to Arguments
Applicant’s arguments with respect to the amended claims have been fully considered but are moot in view of the new grounds of rejection as discussed supra.
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 KATHARINE KANE whose telephone number is (571)272-3398. The examiner can normally be reached Mon-Fri 9am-6pm EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
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.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/KATHARINE G KANE/Primary Examiner, Art Unit 3732
