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 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.
DETAILED ACTION
The present application, filed on March 31, 2026, in which claims 1-2, 6, and 9 were presented for examination, of which claim 1 was amended, is being examined under the first inventor to file provisions of the AIA .
Response to Arguments
Applicant's arguments filed March 31, 2026 have been fully considered but they are not persuasive.
Applicants 1st Argument: First, it is clear from Fig. 3 of Raoul-Duval '735 that no portion of its purported "tunnel" (i.e. pocket (18)) is "extend[ing] longitudinally i at least a portion of said base of said toe box" as claim 1 expressly recites. To the contrary, Fig. 3 of Raoul-Duval '735 shows that longitudinally forward portions of layers (14) and (16) are disposed above a portion of the base of the toe box
(7) but it is clear that the pocket (18) has no portion which extends into the base of the toe box as
claim 1 expressly requires of the recited "tunnel". The pocket (18) and layers (14) and (16) are all merely disposed above the structure that the Examiner's annotated Fig. 3 alleges corresponds to the "base"3 of the toe box (7) and no portion of the alleged "shank insert" (i.e. stiffening member (19)) is "penetrating said portion of said base of said toe box" as claim 1 requires.
Examiners Response: Examiner respectfully disagrees and explains below in amended claim 1 what the “toe box” and “base of the toe box” are, in Raoul-Duval, and how the amended limitations presented are disclosed by Hazzouri in view of Raoul-Duval.
Applicants 2nd Argument: Indeed, it can also be seen from Fig. 3 of Raoul-Duval '735 that the alleged "tunnel" (i.e. pocket (18)) and the alleged "shank insert" (i.e. stiffening member (19)), both terminate longitudinally short of the base of the toe box (7). Because no portion of the alleged "tunnel" (i.e. pocket (18)) extends into the base of the toe box (7), the postulated modification of Hazzouri '293 does not result in the ballet pointe shoe claimed in claim 1. As a result, unlike a "shank insert" received in Applicant's recited "tunnel" which extends into at least a portion of the base of the toe box according to Applicant's claim 1, a stiffening member (19) inserted into the pocket (18) of Raoul-Duval '735 would be incapable of influencing the stiffness or other bending characteristics of the base of the toe box of the shoe of Raoul-Duval '735 and nothing in the postulated modification of Hazzouri '293 would provide that functionality.
Examiners Response: Examiner respectfully disagrees and explains below in the rejection of claim 1 how the amended limitation(s) are taught by Raoul-Duval. Furthermore, due to the combination of Hazzouri in view of Raoul-Duval, one of ordinary skill in the art would recognize because the device of the prior art discloses substantially all of the claimed structural elements, it therefore is fully capable of performing the claimed function(s).
Claim Objections
Claim 6 and 9 are objected to because of the following informalities:
Regarding claims 6 and 9, the claims are misnumbered, due to the filed claims omitting claim 3. As such, claims 6 and 9 should be renumbered to be claims 5 and 8, respectively, and the claims cancelled should reflect the correct numbering order as well.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
Claim 6 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 6, the limitations of claim 6 depend from claim 4, which were cancelled by the Applicant. Examiner assumes Claim 6 should depend directly from claim 1.
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 1-2, and 6 are rejected under 35 U.S.C. 103 as being unpatentable over Hazzouri (US PG Pub. 2015/0342293) in view of Raoul-Duval (US Patent 5,220,735).
Regarding claim 1, Hazzouri discloses a ballet pointe shoe (invention as shown in Fig. 3-8) for use by a ballet dancer, said ballet pointe shoe comprising:
(a) an insole (22, Fig. 6);
(b) an upper (14, Fig. 3) having a foot compartment (12, Par. 0039, lines: 1-7) and a throat (10) by way of which a foot of the ballet dancer enters said foot compartment (Par. 0043), said insole (22) being disposed inside said foot compartment (12, examiner notes as shown in Fig. 6), said upper (14) including a toe box (20) having a base (see annotated Fig. 6 below),
(c) an outsole (combination of 40 and 38) disposed beneath said upper (14); and
(d) a shank insert (15).
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Fig. 6-Examiner Annotated
Hazzouri does not disclose a tunnel and shank insert.
However, Raoul-Duval teaches yet another ballet pointe shoe, wherein Raoul-Duval teaches said upper (3) further including a tunnel (combination of inner surface of elements 16 and 14, and “pocket”, element 18, in Fig. 3) disposed beneath the insole (16, examiner notes as shown in Fig. 3-5), at least a portion of said tunnel extending longitudinally into at least a portion of said base of said toe box (Examiner notes as shown in annotated Fig. 3 below, where the area that denotates the “toe box” is shown to the left of the dotted vertical line and includes elements 10, 9, 8, 4, and portions of the tunnel, elements 16, 14, and 18. The “base of the toe box” is also shown to the left of the vertical line, which includes element 4 and portions of the tunnel, elements 16, 14, and 18), said tunnel (combination of inner surface of elements 16 and 14, and “pocket” element 18) having an open mouth (see annotated Fig. 4 and 5 below, Col. 2, lines: 18-22, examiner notes the “open mouth” is the opening of pocket, 18) which is revealably concealed beneath said insole (16, examiner notes as shown in Fig. 3-5, examiner notes Fig. 3 and 4 show the “open mouth” concealed, and Fig. 5 shows it revealed), said mouth of said tunnel being accessible by way of said throat (see annotated Fig. 3 below) and said foot compartment (interior of element 1 in Fig. 3);
(d) a shank insert (19), a portion of said shank insert being removably and replaceably received in said portion of said tunnel (combination of inner surface of elements 16 and 14, and “pocket” element 18, as shown in Fig. 3-5) and penetrating said portion of said base of said toe box (Examiner notes as shown in annotated Fig. 3 below, where the “base of the toe box” includes element 4 and portions of the tunnel, elements 16, 14, and 18) when said shank insert is installed in said tunnel (Col. 2, lines: 14-16), said shank insert (19) being removable from the ballet pointe shoe (1) by withdrawing said portion of said shank insert from said tunnel (inner surface of elements 16 and 14 in Fig. 3) by way of said open mouth of said tunnel (see annotated Fig. 4 and 5 below) and said throat of said upper (Col. 2, lines: 14-22, examiner notes one of ordinary skill in the art would recognize in order to access the annotated “open mouth of said tunnel” a user would need to go through the annotated “throat of said upper” in annotated Fig. 3 below), said shank insert (19) being replaceable by inserting said portion of said shank insert into said tunnel by way of said throat of said upper and said open mouth of said tunnel (Col. 3, lines: 8-14).
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Fig. 3-Examiner Annotated
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Figs. 4-5 Examiner Annotated
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the shank insert of Hazzouri, by incorporating a tunnel beneath the insole and making the shank insert removable from said tunnel as taught by Raoul-Duval, in order to adjust the flexibility of the shoe to the wearer’s preference (Col. 2, lines: 34-43 and Col. 3, lines: 8-14).
Regarding claim 2, Hazzouri in view of Raoul-Duval disclose said shank insert (19 of Raoul-Duval) is selected from a set of two or more shank inserts (Col. 2, lines: 39-41, examiner notes the first shank insert is element 19, and the second shank insert is considered to be the “strips of steel”), at least one of said shank inserts in said set having a first flexural rigidity profile, at least one other of said shank inserts in said set having a second flexural rigidity profile which differs from said first flexural rigidity profile (Col. 2, lines: 34-47, examiner notes one of ordinary skill in the art would recognize different stiffnesses result in different flexural rigidity profiles due to the “strip of steel” being a different material than the first shank insert, 19, which is made of bamboo wood).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the shank insert disclosed by Hazzouri, by incorporating a set of two shank inserts with differing rigidity profiles as taught by Raoul-Duval, in order to alter the bending characteristics of the shoe to the users preference (Col. 2, lines: 39-43).
Regarding claim 6, Hazzouri in view of Raoul-Duval disclose said upper (14 of Hazzouri) includes an inner liner (41, Par. 0039, lines: 14-15 and Par. 0040, lines: 1-14) and wherein a portion of said inner liner (see annotated Fig. 6 above, Par. 0039, lines: 14-15 and Par. 0040, lines: 1-4 and 8-14) extends beneath said open mouth of said tunnel (“open mouth” is the opening of pocket, 18 of Raoul-Duval. Examiner notes since Hazzouri is modified to include a “tunnel and open mouth” beneath the insole, as taught by Raoul-Duval, one of ordinary skill in the art would recognize the “tunnel and open mouth” would be beneath the annotated “ledge”, since Raoul-Duval shows the “tunnel and open mouth” between two layers. In addition, since insole, 22, is already shown above the annotated shank body, combination of elements 15 and “layer of compartment material”, and its structure is not being changed, it would also be above the annotated “open mouth of said tunnel” of Raoul-Duval).
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Hazzouri in view of Raoul-Duval, further in view of Minden (US PG Pub. 20140259774) and Smith (US Patent 4,267,649), hereinafter Smith.
Regarding claim 9, Hazzouri in view of Raoul-Duval disclose the invention substantially as claimed above.
They do not disclose an elastic loop.
However, Minden teaches yet another ballet shoe, wherein Minden teaches
an elastic loop (64) mounted removably in said upper (Par. 0039, examiner notes the upper is the area around element 28 and 23 in Fig. 1. In addition, element 64 is shown within element 28 in Fig. 1) for continuously applying an elastic force between an instep portion of a foot of the ballet dancer and said shank insert to continuously urge said shank insert toward a sole of the foot of the ballet dancer during the use of the ballet pointe shoe (“for continuously…use of the ballet pointe shoe” is considered as a functional limitation, the device of the prior art discloses substantially all of the claimed structural elements and therefore it is fully capable to perform the claimed function. Par. 0039, examiner notes one of ordinary skill in the art would recognize, when a wearers foot is placed within the shoe shown in Fig. 1, the wearers foot is pressed against elastic loop, 64, which would cause a pulling force transferred to the upper, since element 64 is attached to it, and a pulling force to the soles, 32 and 34 in Fig. 2, bring the soles closer to a wearers sole), said elastic loop having an upper portion (examiner notes the “upper portion” is shown as the portion above element 28 in Fig. 1 and 2) which, during said use, overlies an instep portion of a foot of a ballet dancer (examiner notes element 64 is fully capable of overlaying an instep portion of a foot)
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the upper of Hazzouri in view of Raoul-Duval, by incorporating a removable elastic loop as taught by Minden, in order to enhance fitment of the shoe to a foot.
They do not disclose said elastic loop having a lower portion which is routed beneath a rear portion of said shank insert.
However, Smith teaches yet another footwear for dancing (Col. 8, lines: 32-36), wherein Smith teaches a loop (combination of 120, 120’, examiner notes elements 120 and 120’ are a “loop” because they are shown forming an opening, 116, Col. 11, lines: 42-49), said loop having a lower portion which is routed beneath a rear portion of said shank insert (187’, examiner notes 167 and 167’, which are attached to 120 and 120’ though 168, are shown beneath element 121 in Fig. 12, and further beneath element 187’ in Fig. 13).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify elastic loop disclosed by Hazzouri in view of Raoul-Duval, further in view of Minden, by making it mounted removably in said upper and routed beneath the rear portion of said shank insert as taught by Smith, in order to enhance the compression forces on a wearers foot for enhanced stability.
Conclusion
THIS ACTION IS MADE FINAL. 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.
The prior art made of record and not relied upon is considered pertinent (See PTO-892) to applicant's disclosure.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAKOTA MARIN whose telephone number is (571)272-3529. The examiner can normally be reached Mon.-Fri., 9:00AM-6:00PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, ALISSA TOMPKINS can be reached on (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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/DAKOTA MARIN/Examiner, Art Unit 3732
/ALISSA J TOMPKINS/Supervisory Patent Examiner, Art Unit 3732
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