DETAILED ACTION
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 claims 1-9 directed to Species 31 in the reply filed on 11/13/2025 is acknowledged. Further, it is acknowledged that figs. 20-22 are considered as encompassing species 31.
Claim Objections
Claims 1-9 are objected to because of the following informalities:
Claim 1 recites “the formed article of footwear.” It is suggested the claim is rephrased to recite “the seamless article of footwear” for consistency with the rest of the claim and/or for antecedent basis purposes.
Claim 4 recites “the fibers.” It is suggested the claim is rephrased to recite “the natural fibers.” for consistency with the rest of the claim and/or for antecedent basis purposes.
Claim 4 recites “with liquid rubber.” It is suggested the claim is rephrased to recite “with the liquid rubber” for consistency with the rest of the claim and/or for antecedent basis purposes.
Claim 7 recites “the scaffold layer forms regions forms flexible zones.” It is suggested the claim is rephrased to recite “the scaffold layer forms regions of flexible zones” for clarifying the claim language.
Claim 9 recites “one or more layers” twice. It is suggested each recitation of the claim is rephrased to recite “the one or more layers” for consistency with the rest of the claim and/or for antecedent basis purposes.
Appropriate correction is required.
Claims depending from claims objected to under this section are similarly objected to for their dependence on a claim objected to under this section.
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.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 5 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.
Claim 5 depends from claim 1 and recites “applying the liquid rubber to only the sole portion.” However, claim 1 recites “applying a liquid rubber to an upper portion and the sole portion.” The scope of claim 5 is unclear because there is a conflict with claim 1 wherein the rubber is applied to both portion, and not just only one portion, as required by claim 5. Appropriate correction is required.
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 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 1-4 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over US 2022/0132977 A1 to Bastianelli and in view of US 3,416,174 A to Novitske.
For claim 1, Bastianelli discloses a method for forming an article of footwear (para 0002), comprising:
arranging a scaffold layer (para 0169) over a last having a shape of the article of footwear to form a scaffold assembly (para 0038), wherein the scaffold layer comprises a textile (para 0166); applying a liquid rubber (polymerizable material (e.g. monomers); para 0011) to an upper portion and sole portion of the scaffold assembly to form one or more layers of rubber over the scaffold layer (para 0165), thereby forming a seamless article of footwear (para 0166).
For claim 1, Bastianelli does not specifically disclose wherein the textile is a mesh structure; and the method step of removing the formed article of footwear from the last.
However, attention is directed to Novitske teaching a method of manufacturing footwear having elastomeric dipped portions (col. 1, lines 16-18 of Novitske). Specifically, Novitske provides that after the resilient section is secured to the insole-vamp assembly and while remaining on the form, an elastomeric material is applied to select portions of the assembly preferably by dipping a portion of the assembly in an expandable liquid elastomeric material which tends to flow and diffuse into the fibers, pores and passages in the surfaces coated therewith (col. 5, lines 4-10 of Novitske) and that the article of footwear is removed from a last (“form”) 61 after the manufacturing process and is ready for packaging, if desired (col. 9, lines 19-21 of Novitske). It would have been obvious to one of ordinary skill in the art before the effective filing date wherein Bastianelli would be modified wherein the textile is a mesh structure, for purposes of allowing the polymerizable material to flow and diffuse into the fibers, pores, and passages in the surfaces of the textile, and also comprising the method step of removing the formed article of footwear from the last, for purposes of eventually preparing the article of footwear for packaging, as taught by Novitske (col. 5, lines 4-10 and col. 9, lines 19-21 of Novitske).
For claim 2, the modified Bastianelli teaches the method of claim 1, wherein the textile comprises natural fibers that are knit together to form the mesh structure having open cells (see discussion of claim 1 and teachings of Novitske providing Bastianelli’s textile with fiber pores and passages for receiving the polymerizable material).
For claim 3, the modified Bastianelli teaches the method of claim 2, but does not specifically disclose wherein the open cells are diamond shaped. However, it would have been further obvious to one of ordinary skill in the art before the effective filing date wherein the fiber pores and passages are diamond shaped since the modification would amount to matter of design choice because the minor change in shape would yield the same predictable benefits and similar functional advantages as taught by Novitske for providing an open pore structure that also materials for flow and diffuse within teach pore (see MPEP 2144.04 (IV)(B)).
For claim 4, the modified Bastianelli teaches the method of claim 2, wherein applying the liquid rubber to the upper portion and sole portion of the scaffold assembly includes coating the fibers of the scaffold layer with liquid rubber and extending the liquid rubber into the open cells of the scaffold layer (see discussion or claim 1 and teaches of Novitske above).
For claim 9, the modified Bastianelli teaches the method of claim 1, further comprising: after applying the liquid rubber to the upper portion and sole portion of the scaffold assembly to form one or more layers of rubber over the scaffold layer, rolling a sockliner onto one or more layers of rubber while still wet; and reversing the scaffold assembly with the one or more rubber layers and sockliner thereon inside out to form the article of footwear comprising one or more outer rubber layers with the scaffold layer embedded therein and the sockliner defining an innermost layer of the article of footwear (paras 0028, 0177, 0182, and 0183).
Claims 5 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Bastianelli and Novitske, as applied to claim 1 above, and further in view of US 2,617,208 A to Marx.
For claim 5, the modified Bastianelli teaches the method of claim 1, but does not specifically disclose wherein the one or more layers of rubber is a first layer of rubber, and further comprising applying the liquid rubber to only the sole portion of the scaffold assembly to form a second layer of rubber over only the sole portion.
However, attention is directed to Marx teaching an analogous article of footwear (col. 1, lines 1-10). Specifically, Marx teaches, after a first dipping process, the intermediate article is subjected to a second different latex solution harder than a first dipping process applied only to the sole for providing an abrasion resistant outsole (col. 5, lines 13-37 of Marx). It would have been obvious to one of ordinary skill in the art before the effective filing date wherein the modified Bastianelli would be further modified wherein the process further comprises applying the liquid rubber to only the sole portion of the scaffold assembly to form a second layer of rubber over only the sole portion, for purposes of providing an abrasion resistant outsole, as taught by Marx (col. 5, lines 13-37 of Marx).
For claim 8, the modified Bastianelli teaches the method of claim 1, but does not specifically disclose wherein the one or more layers of rubber is a first layer of rubber and the liquid rubber is a first liquid rubber, and further comprising applying a second liquid rubber to only the sole portion of the scaffold assembly to form a second layer of rubber over only the sole portion, and wherein the second liquid rubber has a higher durometer than the first liquid rubber.
However, attention is directed to Marx teaching an analogous article of footwear (col. 1, lines 1-10). Specifically, Marx teaches, after a first dipping process, the intermediate article is subjected to a second different latex solution harder than a first dipping process applied only to the sole for providing an abrasion resistant outsole (col. 5, lines 13-37 of Marx). It would have been obvious to one of ordinary skill in the art before the effective filing date wherein the modified Bastianelli would be further modified wherein the one or more layers of rubber is a first layer of rubber and the liquid rubber is a first liquid rubber, and further comprising applying a second liquid rubber to only the sole portion of the scaffold assembly to form a second layer of rubber over only the sole portion, and wherein the second liquid rubber has a higher durometer than the first liquid rubber, for purposes of providing an abrasion resistant outsole, as taught by Marx (col. 5, lines 13-37 of Marx).
Claims 6 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Bastianelli and Novitske, as applied to claim 1 above, and further in view of US 2,756,516 A to Teague.
For claim 6, the modified Bastianelli teaches the method of claim 1, but does not specifically disclose wherein the scaffold layer defines one or more pleated structures.
However, attention is directed to Teague teaching elastically expandable foot openings for rubber footwear upper (col. 1, lines 15-18 of Teague). Specifically, Teague provides the rubber upper (11) has corrugations or pleats (14) extending from the edge of the opening (16) substantially to the vamp portion (12) for purposes of expanding to enlarge the opening (16) to permit easy insertion of the foot (col. 1, lines 59-65 and col. 2, lines 39-45 and fig. 1 of Teague). It would have been obvious to one of ordinary skill in the art before the effective filing date wherein Bastianelli would be modified wherein the scaffold layer defines one or more pleated structures for purposes of providing enhanced donning capabilities of the footwear to a wearer, as taught by Teague (col. 1, lines 59-65 and col. 2, lines 39-45 and fig. 1 of Teague).
For claim 7, the modified Bastianelli teaches the method of claim 6, wherein the pleated structures comprise one or more rows of raised and recessed portions, and wherein applying the liquid rubber to the scaffold layer forms regions forms flexible zones in which the article of footwear has greater flexibility (see discussion for claim 6 above and teachings of Teague wherein the pleated is pleated structure is a row of raised and recessed portion for form flexibility zones).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERICK I LOPEZ whose telephone number is (571)272-3262. The examiner can normally be reached Monday - Friday: 9:00am - 5:30pm EST.
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/ERICK I LOPEZ/Examiner, Art Unit 3732