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
Applicant's election with traverse of species III, shown in figure 6c in the reply filed on 12/29/25 is acknowledged. The traversal is on the ground(s) that the different species are not independent or a serious burden on the Examiner. This is not found persuasive because clearly the different species are distinct and independent in that no claims are generic, the different species clearly have different structures that are distinct, i.e. Species I shown in figures 5a and 5b having a plate layer (520) formed by two plates (521 and 522) separated by a longitudinal gap, Species II shown figures 6a, b, and d having a plate layer (620) formed by 4 plates (621, 622, 623, and 624) separated by longitudinal gaps, and Species III shown in figure c having plate layer (620) formed as a single plate having a solid arch section (628) with slits separating a forward and rearward portion into sections (621-624). It is noted that in the specification on page 28 applicant states that “Fig. 6c is a top down view of the sole of Fig.6a according to some embodiments” which appears to be misleading in that Fig. 6C shows an alternative plate layer which is different than the plate layer of 6a in that the plate layer in 6a comprises 4 completely separate plates and the plate layer of an alternative embodiment of Fig 6c is a plate layer comprising a single plate which has slits in the front and rear with a solid arch portion. In reference to a serious burden, while the searches may overlap the search would be burdensome and longer because the examiner would need to search for each distinct inventions or variations. Furthermore, the search is only part of the examination process, the MPEP 803 states "If the search and examination of all the claims in an application can be made without serious burden". The examination of the application would be burdensome because the examiner would be required to apply art and rejections to the additional claims directed towards each distinct and different species of invention and Examine the additional claims for 35 USC 112 and 101 compliance.
The requirement is still deemed proper and is therefore made FINAL.
Claims 21-35 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected species in that the elected species (Species III, shown in figure 6c) shows a plate layer comprising a single plate with a solid arch portion at 628 and slits in the forward and rearward portions and it is noted that claims 21-35 claim “at least two reinforcing plates” and the embodiment of Species III does not support a plurality of plates, it only has a single plate and therefore these claims do not read on the elected species. There being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 12/29/25.
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) 36-38 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Tong (5185943).
Tong shows A sole for a shoe, the sole comprising:
a midsole (28);
a reinforcing structure (26 and 120) at least partially embedded in the midsole (see column 7 lines 31-33 which states that the heel portion of the plate is embedded in the midsole and column 8 lines 24-34), the reinforcing structure comprising:
a connecting plate (see marked up figure below),
a first plurality of reinforcing plates (122) extending forwardly away from the connecting plate in a front half of the sole and comprising at least two reinforcing plates, and
a second plurality of reinforcing plates (see marked up figure below) extending rearwardly from the connecting plate in a heel area of the sole and comprising at least two reinforcing plates,
wherein the at least two reinforcing plates of the first plurality of reinforcing plates are spaced apart in a toe region from the connecting plate to terminating ends of the reinforcing plates at a toe ends of the plates (see figure 16), and
wherein the at least two reinforcing plates of the second plurality of reinforcing plates are spaced apart in a heel region from the connecting plate to terminating ends of the reinforcing plates at a heel ends of the plates (see figure 16) as claimed.
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In reference to claim 37, see column 9 line 19.
In reference to claim 39, see figure 16 which shows at least four first and second reinforcing plates.
Claim(s) 36 and 38 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Austin (2005/0268489).
Austin shows A sole for a shoe, the sole comprising:
a midsole (2);
a reinforcing structure (1, 3, 4, and 12) at least partially embedded in the midsole (see paragraph [0030]), the reinforcing structure comprising:
a connecting plate (3 and/or 4),
a first plurality of reinforcing plates (1) extending forwardly away from the connecting plate in a front half of the sole and comprising at least two reinforcing plates, and
a second plurality of reinforcing plates (12) extending rearwardly from the connecting plate in a heel area of the sole and comprising at least two reinforcing plates,
wherein the at least two reinforcing plates of the first plurality of reinforcing plates are spaced apart in a toe region from the connecting plate to terminating ends of the reinforcing plates at a toe ends of the plates (see figure 5), and
wherein the at least two reinforcing plates of the second plurality of reinforcing plates are spaced apart in a heel region from the connecting plate to terminating ends of the reinforcing plates at a heel ends of the plates (see figure 5) as claimed.
In reference to claim 39, see figure 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.
Claim(s) 38 is/are rejected under 35 U.S.C. 103 as being unpatentable over Austin.
Austin discloses the claimed invention except for forming the reinforcement integrally. It would have been obvious to one having ordinary skill in the art at the time the invention was made to make the reinforcement integrally, since it has been held that forming in one piece an article which has formerly been formed in two pieces and put together involves only routine skill in the art. Howard v. Detroit Stove Works, 150 U.S. 164 (1893).
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.
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In order to avoid potential delays, Technology Center 3700 is encouraging FAXing of responses to Office Actions directly into the Center at (571)273-8300 (FORMAL FAXES ONLY). Please identify Examiner Marie Bays of Art Unit 3732 at the top of your cover sheet.
Any inquiry concerning the MERITS of this examination from the examiner should be directed to Marie Bays whose telephone number is (571) 272-4559. The examiner can normally be reached from Mon-Thurs 6-4. Alternatively if the Examiner cannot be reached, please contact the Examiners SPE Alissa Tompkins at 571-272-3425.
/MARIE D BAYS/Primary Examiner, Art Unit 3732