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 without traverse of species II (shoe as shown in figures 2A02C) in the reply filed on 1/21/2025 is acknowledged.
Claims 4-7 and 14-17 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 1/21/2025.
To the extent that the withdrawn claims (i.e. claims 4-7) get rejoined, applicant should amend them during prosecution. Accordingly, if the independent claim is no longer generic then applicant is encourage to cancel the withdrawn claims.
Claim Rejections - 35 USC § 102
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 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 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 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 6442874 (Long).
Regarding claims 1-3, Long discloses a size adjustable shoe (shoe 20, Fig. 1; abstract) comprising:
a sole portion (sole 12, Fig. 1) and an upper portion (upper 10, Fig. 1) coupled to the sole portion, the upper portion comprising a heel portion (heel section 28, Fig. 7; Col. 3, lines 65-67),
wherein a heel curtain (sizing member 100, Figs. 1 and 7) is coupled adjacent a topline of the heel portion (ankle collar 30, Fig. 7, Col. 4, lines 8-9), and the heel curtain is transformable between a first position (first position in which the sizing member 100 is adjacent to an inner surface 33 of the heel section 28, Figs. 1 and 6; Col. 4, lines 5-8 and 49-57) adjacent to a first surface of the heel portion (inner surface 33 of the heel section 28, Figs. 1 and 6) and a second position (second position in which the sizing member 100 is adjacent to an outer surface of the heel section 28, Fig. 12 and Col. 6, lines 36-42) adjacent to a second surface of the heel portion (outer surface of the heel section 28, Fig. 12),
wherein an inner dimension of the shoe has a first measurement when the heel curtain is in the first position (first length of shoe 20 when the sizing member 100 is in the first position, Fig. 1),
wherein the inner dimension of the shoe has a second measurement (second length of shoe 20 when the sizing member 100 is in the second position, Fig. 12) when the heel curtain is in the second position, and wherein the first measurement is not equal to the second measurement (the first length is less than the second length of shoe 20, Figs. 1 and 12; Col. 4, lines 54-61; Col. 8, lines 59-67).
Regarding claim 2, Long discloses the shoe of claim 1. wherein the first surface is an inner surface of the heel portion (inner surface 33 of the heel section 28, Figs. 1 and 6) and the second surface is an outer surface of the heel portion (outer surface of the heel section 28, Fig. 12).
Regarding claim 3, Long discloses the shoe of claim 2, wherein the inner dimension is length and the first measurement is less than the second measurement (the first length is less than the second length of shoe 20, Figs. 1 and 12; Col. 4, lines 54-61; Col. 8, lines 59-67).
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 8-13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Long ‘874 in view of US 10905196 (Steere).
Regarding claims 8-13, Long discloses a shoe a size adjustable shoe (see the rejection above for details) except for
wherein the heel curtain comprises a curtain plug and wherein the heel portion comprises a plug receptacle. (claim 8 and 11).
wherein, when the heel curtain is in the first position, the curtain plug extends into a side of the plug receptacle. (claims 9 and 11).
wherein, when the heel curtain is in the second position, the curtain plug extends into an opposite side of the plug receptacle. (claims 10 and 11).
The heel curtain of Long is attached in a first position to the inner side by a hook and loop fastener (i.e. Velcro 112) and is attached in a second position (see figure 12) to the outer surface by any desirable attachment technique (see col. 6, lines 36-50).
Steere teaches a heel cup (780; see figures 7A-7B and col. 8, line 58 to col 9, line 7)) wherein the fastening mechanism (790) which is attached to the inner surface and/or to the outer surface of the shoe upper by a variety of different attachment techniques (e.g. hook and loop fasteners, a snap fastener, etc.). See figures 7A-7B which shows a plug ((fastening tab 791) extending into a receptacle (i.e. dock 792). The examiner takes official notice that a snap fastener comprising a male fastener (equivalent to a plug) which is received in a female aperture (i.e. female plug aperture) is well known and conventional in the art.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide the fastening mechanism taught by Long to be substituted with a plug and plug receptacle system on the inner surface and outer surface of the upper, as taught by Steere and/or official notice, to facilitate keeping the heel curtain secured when in the first position and in the second position. The curtain plug on the inner and outer surface would naturally be located at the same distance from the topline of the shoe and therefore extends into an opposite side of the plug receptacle.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TED KAVANAUGH whose telephone number is (571) 272-4556. The examiner can normally be reached on Monday-Thursday 8AM-6PM.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule a telephone interview, applicant is encouraged to call the examiner. Normally telephone interviews can quickly be scheduled. For other types of interviews, 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 on 57-1272-4888. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Ted Kavanaugh/
Primary Patent Examiner
Art Unit 3732
Tel: (571) 272-4556