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 January 22, 2026 has been received, Claims 21-29 and 32-42 are currently pending.
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 pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter 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 pre-AIA 35 U.S.C. 103(a) 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.
1. Claims 21-27, 29, 32-33, 35-38, and 41-42 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Dua (US 2010/0154256) in view of Bell (US 2010/0077634), as evidenced by Orei (US 2005/0081402).
Regarding Claim 21, Dua discloses a shoe comprising: a three-dimensional upper having a one-piece flat-knitted element (30; para.20, as seen in Fig.1 & 6) comprising: a knitted collar (45) having a finished knit contour (i.e. top edge and/or bottom edge of 45; para.39) that extends in from a medial side of the shoe continuously around a heel portion of the shoe to a lateral side of the shoe (as seen in Fig.4); a base area (40) integrally knit with the knitted collar (as seen in Fig.2 & 5D), comprising: at least one finished knit edge (i.e. any perimeter edge of 40; para.39, as seen in Fig.6); and one or more functional areas (any area of 40); a sole (20) coupled to the upper (as seen in Fig.1). Dua does not disclose the finished knit contour that extends in an uninterrupted manner from a medial side of the shoe continuously around a heel portion of the shoe to a lateral side of the shoe in a single piece. However, Bell teaches a knit upper (200; para.49), wherein a collar having a finished knit contour (i.e. top region of 218) extends in an uninterrupted manner from a medial side (of 212) of the shoe continuously around the heel portion of the shoe to a lateral side (of 214) of the shoe in a single piece (as seen in Fig.3).
Therefore, it would have been obvious to one having ordinary skill in the art before the invention was made to have substituted the collar configuration of Dua for the collar configuration of Bell, as a simple substitution of one well known shoe upper collar configuration for another, in order to yield the predictable result of a flat upper blank that can be stitched into a useable upper. Further, it has been held that rearranging parts of an invention involves only routine skill in the art. See MPEP 2144.04 VI. When in combination, Dua and Bell teach the collar extending in an uninterrupted manner from a medial side of the shoe around the heel portion to a lateral side of the shoe in a single piece, by virtue of the location of the seam. It is further noted that it is well known in the knitting art that knitting a different shape requires merely programming of the knitting machine to obtain the desired shape; as evidenced by Fig.5 of Orei (US 2005/0081402) which shows a continuously knit collar (32c2) on a blank (32) with a unique knit shape and various knit types.
Regarding Claim 22, Dua discloses a shoe of claim 21 wherein the knitted collar (45) further comprises a first layer (i.e. outer layer of 45) having at least a first knitted gore line (i.e. bottom edge of outer layer of 45 is a gore line, inasmuch as has been claimed by Applicant); and a second layer (i.e. inner layer of 45) having at least a second knitted gore line (i.e. bottom edge of inner layer of 45 is a gore line, inasmuch as has been claimed by Applicant) and connected to the first layer using knit stitches at the contour (as seen in Fig.5D).
Regarding Claim 23, Modified Dua discloses a shoe of claim 21 wherein the collar comprises: a first layer (i.e. outer layer of 45) having at least a first knitted gore line (i.e. bottom edge of outer layer of 45 is a gore line, inasmuch as has been claimed by Applicant); and a second layer (i.e. inner layer of 45) having at least a second knitted gore line (i.e. bottom edge of inner layer of 45 is a gore line, inasmuch as has been claimed by Applicant) and connected to the first layer using knit stitches at the contour of the collar (para.29; as seen in Fig.5D, the layers are connected by a course of knit stitches that runs across the top edge of 45); and wherein the layers define a pocket (i.e. void in 45) extending in an uninterrupted manner from the medial side around the heel to the lateral side in a single piece (when modified by Bell, and as evidenced by Orei).
Regarding Claim 24, Dua discloses a shoe of claim 21 wherein the at least one finished knit edge of the base area (i.e. heel perimeter edge of 40) and the finished knit contour of the collar (i.e. top edge and/or bottom edge of 45) form a continuous knit finished contour of the shoe such that all exposed knit edges on the shoe are finished (para.39; as seen in Fig.1-2 & 6).
Regarding Claim 25, Dua discloses a shoe of claim 21 wherein the knitted collar further comprises: a pocket (i.e. void in 45) extending through at least a portion of the collar defined by a first knit layer and a second knit layer (as seen in Fig.5D), wherein at least a portion of the knit layers of the pocket are not enmeshed and wherein the knit layers are connected the finished knit contour (as seen in Fig.5D); and a foam material (para.47); wherein the pocket and the foam material extend around the heel portion of the shoe (as seen in Fig.4 & 5D).
Regarding Claim 26, Dua discloses a shoe of claim 21 wherein the functional area comprises at least one of: an area of increased permeability (41; para.22); a greater density of stitches than a surrounding knit material (48; para.44); a multi-layered area having at least two knit layers wherein a stretchability of a first knit layer is reduced by a second knit layer; a fused material in at least one layer of the functional area (47; para.43); a polymer coating (para.43; as seen in Fig.7C & 7D); and a first knitting technique and a first characteristic (para.40).
Regarding Claim 27, Dua discloses a shoe of claim 21 wherein at least one of the one or more functional areas comprises a fused material (47; as seen in Fig.7C) comprising at least one of: a polymer material having a melt temperature of equal to or less than about 160 C; a fuse yarn (para.43); a monofilament; or a coating.
Regarding Claim 29, Dua discloses a shoe comprising: a three-dimensional upper comprising a one-piece flat-knitted element (30; para.20, as seen in Fig.1 & 6), comprising: a base area (40) having at least one finished knit edge (i.e. any perimeter edge of 40; para.39); and a collar (45) comprising: a first knit layer (i.e. outer layer of 45) comprising a first gore line (i.e. bottom edge of outer layer of 45 is a gore line, inasmuch as has been claimed by Applicant); a second knit layer (i.e. inner layer of 45) comprising a second knitted gore line (i.e. bottom edge of inner layer of 45 is a gore line, inasmuch as has been claimed by Applicant); and a finished and external knit contour (i.e. top edge of 45; para.39) that defines at least a portion of an edge of the upper (as seen in Fig.1-2); and a sole (20) coupled to the upper (as seen in Fig.1). Dua does not disclose the finished knit contour that extends in an uninterrupted manner from a medial side of the shoe continuously around a heel portion of the shoe to a lateral side of the shoe. However, Bell teaches a knit upper (200; para.49), wherein a collar having a finished knit contour (i.e. top region of 218) extends in an uninterrupted manner from a medial side (of 212) of the shoe continuously around the heel portion of the shoe to a lateral side (of 214) of the shoe (as seen in Fig.3).
Therefore, it would have been obvious to one having ordinary skill in the art before the invention was made to have substituted the collar configuration of Dua for the collar configuration of Bell, as a simple substitution of one well known shoe upper collar configuration for another, in order to yield the predictable result of a flat upper blank that can be stitched into a useable upper. Further, it has been held that rearranging parts of an invention involves only routine skill in the art. See MPEP 2144.04 VI. When in combination, Dua and Bell teach the collar extending in an uninterrupted manner from a medial side of the shoe around the heel portion to a lateral side of the shoe in a single piece, by virtue of the location of the seam. It is further noted that it is well known in the knitting art that knitting a different shape requires merely programming of the knitting machine to obtain the desired shape; as evidenced by Fig.5 of Orei (US 2005/0081402) which shows a continuously knit collar (32c2) on a blank (32) with a unique knit shape and various knit types.
Regarding Claim 32, Dua discloses a shoe of claim 29 wherein the knitted collar further comprises: a pocket (i.e. void in 45) extending through at least a portion of the collar defined by a first knit layer and a second knit layer (as seen in Fig.5D), wherein at least a portion of the knit layers of the pocket are not enmeshed and wherein the knit layers are connected the finished knit contour (as seen in Fig.5D); and a foam material (para.47); wherein the pocket and the foam material extend around the heel portion of the shoe (as seen in Fig.4 & 5D).
Regarding Claim 33, Dua discloses a shoe of claim 29 further comprising at least one functional area comprising at least one of: an area of increased permeability (41; para.22); a greater density of stitches than a surrounding knit material (48; para.44); a multi-layered area having at least two knit layers wherein a stretchability of a first knit layer is reduced by a second knit layer; a fused material in at least one layer of the functional area (47; para.43); a polymer coating (para.43; as seen in Fig.7C & 7D); and a first knitting technique and a first characteristic (para.40).
Regarding Claim 35, Dua discloses a shoe of claim 29 wherein the collar further comprises: a first layer (i.e. outer layer of 45) having at least a first knitted gore line (i.e. left edge of 45 in outer layer); a second layer (i.e. inner layer of 45) having at least a second knitted gore line (i.e. left edge of 45 in inner layer) and connected to the first layer using knit stitches at the contour (as seen in Fig.5D); and a pocket (i.e. void in 45) defined by the first and second layers and comprising a foam material (para.47) in at least a section of the collar (as seen in Fig.4 & 5D).
Regarding Claim 36, Dua discloses a shoe comprising: a sole (20); and a three-dimensional upper having a one-piece flat-knitted element (30; para.20, as seen in Fig.1 & 6) coupled to the sole comprising: a base area (40 & lining) having at least one knit finished contour (para.39) comprising: at least one fused area (47) comprising: a first textile layer (exterior layer of 40); and a second textile layer (lining; para.45); wherein at least one of the first textile layer, the second textile layer, or an area between the first textile layer and the second textile layer comprises a fused material (i.e. material of 47; para.43, as seen in Fig.7C); a collar (45) having a finished knit contour extending from a medial side of the shoe around the heel portion to a lateral side of the shoe (as seen in Fig.1 & 4); wherein exposed edges of the upper are finished knit edges (para.39). Dua does not disclose the finished knit contour that extends in an uninterrupted manner from a medial side of the shoe continuously around a heel portion of the shoe to a lateral side of the shoe in a single piece. However, Bell teaches a knit upper (200; para.49), wherein a collar having a finished knit contour (i.e. top region of 218) extends in an uninterrupted manner from a medial side (of 212) of the shoe continuously around the heel portion of the shoe to a lateral side (of 214) of the shoe in a single piece (as seen in Fig.3).
Therefore, it would have been obvious to one having ordinary skill in the art before the invention was made to have substituted the collar configuration of Dua for the collar configuration of Bell, as a simple substitution of one well known shoe upper collar configuration for another, in order to yield the predictable result of a flat upper blank that can be stitched into a useable upper. Further, it has been held that rearranging parts of an invention involves only routine skill in the art. See MPEP 2144.04 VI. When in combination, Dua and Bell teach the collar extending in an uninterrupted manner from a medial side of the shoe around the heel portion to a lateral side of the shoe in a single piece, by virtue of the location of the seam. It is further noted that it is well known in the knitting art that knitting a different shape requires merely programming of the knitting machine to obtain the desired shape; as evidenced by Fig.5 of Orei (US 2005/0081402) which shows a continuously knit collar (32c2) on a blank (32) with a unique knit shape and various knit types.
Regarding Claim 37, Dua discloses a shoe of claim 36 wherein the knitted collar (45) further comprises a first layer (i.e. outer layer of 45) having at least a first knitted gore line (i.e. bottom edge of outer layer of 45 is a gore line, inasmuch as has been claimed by Applicant); a second layer (i.e. inner layer of 45) having at least a second knitted gore line (i.e. bottom edge of inner layer of 45 is a gore line, inasmuch as has been claimed by Applicant); wherein the second layer is connected to the first layer using knit stitches at the contour (para.29; as seen in Fig.5D, the layers are connected by a course of knit stitches that runs across the top edge of 45); and wherein at least one of the at least a first knitted gore line or the at least a second knitted gore line is spaced from a midpoint of the heel portion (as seen in Fig.4 & 6).
Regarding Claim 38, Dua and Bell disclose the invention substantially as claimed above. Dua discloses wherein the fused material comprises at least one of a polymer material (para.43) having a melt temperature, and wherein the polymer material comprises a fuse yarn (para.43), a monofilament, or a coating. Dua does not disclose the melt temperature of equal to or less than about 160 C. However, it would have been obvious to one having ordinary skill in the art before the invention was made to have modified the melt temperature of Dua’s fuse yarn to be equal to or less than about 160 C, in order to provide the optimum level of melt for the desired cure for the desired durability and reinforcement of the upper. Further, it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. See MPEP 2144.05.
Regarding Claim 41, Dua discloses a shoe of claim 29 further comprising at least one functional area comprising at least one of: an area of increased permeability (41; para.22); a greater density of stitches than a surrounding knit material (48; para.44); a pocket (i.e. void of 45) formed by a double-layered material connected on at least one side by knitting (as seen in Fig.5D); a multi-layered area having at least two knit layers wherein a stretchability of a first knit layer is reduced by a second knit layer; a fused material in at least one layer of the functional area (47; para.43); a polymer coating (para.43; as seen in Fig.7C & 7D); and a first knitting technique and a first characteristic (para.40).
Regarding Claim 42, Dua discloses a shoe of claim 29 further comprising a reinforcement area comprising at least one of: a polymer material having a melt temperature of equal to or less than about 160* C; a polymer material comprising at least one of a pigment or a fiber; a fuse yarn (para.43); or a monofilament.
2. Claims 28, 34, and 39-40 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Dua (US 2010/0154256) and Bell (US 2010/0077634), as evidenced by Orei (US 2005/0081402), in view of Dua (US 2012/0279260), herein after Bhupesh.
Regarding Claims 28 and 40, Dua and Bell disclose the invention substantially as claimed above, including Dua disclosing a first fused area (47 in heel) of the base area, having a first yarn comprises a thermoplastic material having a first melting point (para.43), and a second fused area (47 in toe) in the base area comprising the thermoplastic material of the first yarn in the second fused area (para.43), wherein the second fused area comprises a reduced amount of the thermoplastic material relative to the first fused area (as seen in Fig.7C, 47 in the toe is smaller than 47 in the heel; para.43); and using various yarn types that impart different properties to separate areas of upper (para.35). Dua does not explicitly disclose the first fused area of the base area having a first yarn and a second yarn, wherein the first yarn comprises a thermoplastic material having a first melting point, and wherein the second yarn comprises a material that has a higher melting point than the thermoplastic material of the first yarn. However, Bhupesh teaches a knit upper having a base area (110) with a first yarn (114) and a second yarn (113), wherein the first yarn comprises a thermoplastic material having a first melting point, and wherein the second yarn comprises a material that has a higher melting point than the thermoplastic material of the first yarn (para.22-23; as seen in Fig.4B).
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 first and second fused areas of Dua to have a first yarn and a second yarn, and the second yarn comprises a material that has a higher melting point than the thermoplastic material of the first yarn, as taught by Bhupesh, in order to provide a knit upper that is durable to withstand wear-and-tear and comfortable for a user to wear.
Regarding Claim 34, Dua and Bell disclose the invention substantially as claimed above, including Dua further comprising: a first fused area (47 in heel) in the base area comprising: a thermoplastic material having a first melting point (para.43), a second fused area (47 in toe) in the base area comprising the thermoplastic material (para.43); wherein the second fused area comprises a reduced amount of the thermoplastic material relative to the first fused area (as seen in Fig.7C, 47 in the toe is smaller than 47 in the heel; para.43); and using various yarn types that impart different properties to separate areas of upper (para.35). Dua does not disclose a thermoplastic material having a first melting point; one or more yarns having a second melting point that is higher than the first melting point. However, Bhupesh teaches a knit upper having a base area (110) with a first yarn (114) and a second yarn (113), wherein the first yarn comprises a thermoplastic material having a first melting point, and one or more yarns having a second melting point that is higher than the first melting point (para.22-23; as seen in Fig.4B).
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 first and second fused areas of Dua to have a first yarn and a second yarn, and the second yarn comprises a material that has a higher melting point than the thermoplastic material of the first yarn, as taught by Bhupesh, in order to provide a knit upper that is durable to withstand wear-and-tear and comfortable for a user to wear.
Regarding Claim 39, Dua and Bell disclose the invention substantially as claimed above. Dua does not disclose wherein at least a portion of the fused material is positioned at least partially between the first textile layer and the second textile layer and wherein the fused material comprises a thermoplastic material having a lower melting point than a yarn proximate to the fused material. However, Bhupesh teaches a knit upper having a base area (110) having at least a portion of a fused material (114) positioned at least partially between a first textile layer (111) and a second textile layer (112) and wherein the fused material comprises a thermoplastic material having a lower melting point than a yarn (113) proximate to the fused material (para.22-23; as seen in Fig.4B).
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 fused material of Dua to be positioned at least partially between the first textile layer and the second textile layer and the fused material having a lower melting point than a yarn proximate to the fused material, as taught by Bhupesh, in order to provide a knit upper that is durable to withstand wear-and-tear and comfortable for a user to wear.
Response to Arguments
In view of Applicant's amendment, the search has been updated, and new prior art has been identified and applied. Applicant's arguments have been considered but are moot in view of the new ground(s) 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.
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/MEGAN E LYNCH/Primary Examiner, Art Unit 3732