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 .
Claim Objections
Claims 1, 5, 11, and 18 are objected to because of the following informalities:
“a cushion support disposed between the cushion member and an upper of the article of footwear” in Claim 1 should read “a cushion support configured to be disposed between the cushion member and an upper of the article of footwear” as the upper is not part of the claimed invention (a sole structure, as recited in the preamble)
“a plate disposed between the cushion support and the upper” in Claim 5 should read “aa plate configured to be disposed between the cushion support and the upper” as the upper is not part of the claimed invention (a sole structure, as recited in the preamble)
“a plate disposed between the cushion member and an upper of the article of footwear” in Claim 1 should read “a plate configured to be disposed between the cushion member and an upper of the article of footwear” as the upper is not part of the claimed invention (a sole structure, as recited in the preamble)
“along a medical side” in Claim 12 should read “along a medial side”
“a cushion support disposed on an opposite side of the plate than the upper” in Claim 18 should read “a cushion support configured to be disposed on an opposite side of the plate than the upper” as the upper is not part of the claimed invention (a sole structure, as recited in the preamble)
Appropriate correction is required.
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) 1-13, 15, and 17-20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Eldem et al. (US 2020/0022455).
Regarding Claim 1, Eldem et al. teaches a sole structure (200) for an article of footwear (10), the sole structure comprising: a cushion member (206) extending from a forefoot region (12) to a heel region (16) of the sole structure (fig. 1 shows the cushion member (206) extending from the forefoot (12) to the heel (16) region) and including a plurality of lobes (see annotated Fig.) arranged in series along a peripheral region of the sole structure (annotated fig. 2 shows the lobes being arranged in series along a peripheral region of the sole structure); and a cushion support (208) disposed between the cushion member (206) and an upper (100) of the article of footwear and including a first plurality of individual supports (see annotated Fig.) spaced apart from one another along a longitudinal axis of the sole structure (annotated fig. 12b shows the individual supports being spaced apart from one another along a longitudinal axis of the sole structure), each individual support of the first plurality of supports engaging a respective lobe (see annotated Fig.) of the cushion member (annotated figs. 1, 2 and 4 show each individual support engaging a respective lobe of the cushion member (206)).
Regarding Claim 2, Eldem et al. teaches all of the limitations of the sole structure of Claim 1, as discussed in the rejections above. Eldem et al. further teaches wherein supports (see annotated Fig.) of the first plurality of supports define concave surfaces that receive respective convex outer surfaces of the cushion member (figs. 6-8 and 12B show the supports defining concave surfaces that receive respective convex outer surfaces of the cushion member (206)).
Regarding Claim 3, Eldem et al. teaches all of the limitations of the sole structure of Claim 1, as discussed in the rejections above. Eldem et al. further teaches wherein adjacent supports of the first plurality of supports are separated from one another by a gap (268) (annotated fig. 12B shows the adjacent supports being separated by gaps (268)).
Regarding Claim 4, Eldem et al. teaches all of the limitations of the sole structure of Claim 1, as discussed in the rejections above. Eldem et al. further teaches wherein the cushion member (206) is a fluid-filled chamber (paragraph [0052], “the bladder 206 of the midsole 202 includes an opposing pair of barrier layers 218a, 218b, which can be joined to each other at discrete locations to define an elongate fluid-filled chamber 220, a web area 222, and a peripheral seam 224”).
Regarding Claim 5, Eldem et al. teaches all of the limitations of the sole structure of Claim 1, as discussed in the rejections above. Eldem et al. further teaches a plate (210) disposed between the cushion support (208) and the upper (100) (fig. 6 shows the plate (210) being disposed between the cushion support (208) and the upper (100)).
Regarding Claim 6, Eldem et al. teaches all of the limitations of the sole structure of Claim 5, as discussed in the rejections above. Eldem et al. further teaches wherein the plate (210) includes a higher rigidity than the cushion support (208) (paragraph [0096] teaches “the inner cushion 208 and the lower cushion 212 may be formed of foam materials providing greater cushioning and impact distribution, while the outer cushion 210 is formed of a foam material having a greater stiffness in order to provide increased lateral stiffness to the peripheral region 26 of the upper 100,” therein the plate (210) clearly has a higher rigidity than the cushion support (208)).
Regarding Claim 7, Eldem et al. teaches all of the limitations of the sole structure of Claim 5, as discussed in the rejections above. Eldem et al. further teaches wherein the plate includes a second plurality of supports (see annotated Fig.) that are spaced apart from one another along the longitudinal axis of the sole structure, each individual support of the second plurality of supports engaging a respective lobe of the cushion member (annotated fig. 13B shows the second plurality of supports, figs 1 and 5-9 show the supports engaging a respective lobe of the cushioning member).
Regarding Claim 8, Eldem et al. teaches all of the limitations of the sole structure of Claim 7, as discussed in the rejections above. Eldem et al. further teaches wherein respective supports of the second plurality of supports are disposed between adjacent supports of the first plurality of supports (Annotated fig. 13B shows the second plurality of supports extending over the gaps (268) separating the first plurality of supports and therein being disposed between adjacent supports of the first plurality of supports).
Regarding Claim 9, Eldem et al. teaches all of the limitations of the sole structure of Claim 7, as discussed in the rejections above. Eldem et al. further teaches wherein supports of the second plurality of supports alternate with supports of the first plurality of supports around the peripheral region of the sole structure (Annotated fig. 13B shows the second plurality of supports extending over the gaps (268) separating the first plurality of supports and therein alternating with the first plurality of supports).
Regarding Claim 10, Eldem et al. teaches all of the limitations of the sole structure of Claim 1, as discussed in the rejections above. Eldem et al. further teaches wherein the cushion support (208) comprises a foam material (paragraph [0096] teaches “each of the inner cushion 208, the outer cushion 210, and the lower cushion 212 are formed of a resilient polymeric material, such as foam or rubber, to impart properties of cushioning, responsiveness, and energy distribution to the foot of the wearer.”).
Regarding Claim 11, Eldem et al. teaches a sole structure (200) for an article of footwear (10), the sole structure comprising: a cushion member (206) extending from a forefoot region to a heel region of the sole structure (fig. 1 shows the cushion member (206) extending from the forefoot (12) to the heel (16) region) and including a plurality of lobes arranged in series along a peripheral region of the sole structure (annotated fig. 2 shows the lobes being arranged in series along a peripheral region of the sole structure); and a plate (210) disposed between the cushion member and an upper (100) of the article of footwear (fig. 5 shows the plate (210) between the cushion member (206) and the upper (100)) and including a first plurality of individual supports (see annotated Fig.) spaced apart from one another along a longitudinal axis of the sole structure, each individual support of the first plurality of supports engaging a respective lobe of the cushion member (Annotated figs. 2, 11A, and 13B show the first plurality of individual supports being spaced apart along the longitudinal axis and engaging a respective lobe).
Regarding Claim 12, Eldem et al. teaches all of the limitations of the sole structure of Claim 11, as discussed in the rejections above. Eldem et al. further teaches wherein the plate includes a medial leg (see annotated Fig.) extending along a medial side of the sole structure, a lateral leg (see annotated Fig.) extending along a lateral side of the sole structure, and a gap (292) disposed between and defined by the medial leg and the lateral leg (annotated fig. 13A shows the medial and lateral legs extending along the medial and lateral sides, respectively, with a gap (292) formed between the medial and lateral legs).
Regarding Claim 13, Eldem et al. teaches all of the limitations of the sole structure of Claim 12, as discussed in the rejections above. Eldem et al. further teaches wherein the medial leg is attached to the lateral leg by an arcuate segment (see annotated Fig.) extending along a posterior end of the sole structure (Annotated fig. 13A shows the medial and lateral legs being attached by a posterior arcuate segment).
Regarding Claim 15, Eldem et al. teaches all of the limitations of the sole structure of Claim 12, as discussed in the rejections above. Eldem et al. further teaches wherein at least one of the medial leg and the lateral leg includes a series of undulations extending along a length of the at least one of the medial leg and the lateral leg (figs. 1 and 2 show the medial and lateral legs including a series of undulations extending along their lengths).
Regarding Claim 17, Eldem et al. teaches all of the limitations of the sole structure of Claim 11, as discussed in the rejections above. Eldem et al. further teaches wherein the cushion member is a fluid-filled chamber (paragraph [0052], “the bladder 206 of the midsole 202 includes an opposing pair of barrier layers 218a, 218b, which can be joined to each other at discrete locations to define an elongate fluid-filled chamber 220, a web area 222, and a peripheral seam 224”).
Regarding Claim 18, Eldem et al. teaches all of the limitations of the sole structure of Claim 11, as discussed in the rejections above. Eldem et al. further teaches a cushion support (208) disposed on an opposite side of the plate (210) than the upper (100) and including a second plurality of supports (see annotated Fig.) that are separated from one another by a gap (268) and engage a respective lobe of the cushion member between adjacent supports of the first plurality of supports (fig. 12B shows the second plurality of supports being separated by a gap (268) and figs. 1 and 5-8 show the supports engaging the cushion member between adjacent supports of the first plurality of supports).
Regarding Claim 19, Eldem et al. teaches all of the limitations of the sole structure of Claim 18, as discussed in the rejections above. Eldem et al. further teaches wherein the cushion support (208) comprises a foam material (paragraph [0096] teaches “each of the inner cushion 208, the outer cushion 210, and the lower cushion 212 are formed of a resilient polymeric material, such as foam or rubber, to impart properties of cushioning, responsiveness, and energy distribution to the foot of the wearer.”).
Regarding Claim 20, Eldem et al. teaches all of the limitations of the sole structure of Claim 19, as discussed in the rejections above. Eldem et al. further teaches wherein the plate (210) includes a higher rigidity than the cushion support (208) (paragraph [0096] teaches “the inner cushion 208 and the lower cushion 212 may be formed of foam materials providing greater cushioning and impact distribution, while the outer cushion 210 is formed of a foam material having a greater stiffness in order to provide increased lateral stiffness to the peripheral region 26 of the upper 100,” therein the plate (210) clearly has a higher rigidity than the cushion support (208)).
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Claim(s) 11-14, 16, and 17 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Dojan et al. (US 2006/0137221)
Regarding Claim 11, Dojan et al. teaches a sole structure (12) for an article of footwear (10), the sole structure comprising: a cushion member (30) extending from a forefoot region to a heel region of the sole structure (fig. 1 shows the cushion member (30) extending from the forefoot (15) to the heel (17) region) and including a plurality of lobes (see annotated Fig.) arranged in series along a peripheral region of the sole structure (annotated fig. 10 shows the lobes being arranged in series along a peripheral region of the sole structure); and a plate (40) disposed between the cushion member and an upper (11) of the article of footwear (fig. 2 and 9A shows the plate (40) between the cushion member (30) and the upper (11)) and including a first plurality of individual supports (see annotated Fig.) spaced apart from one another along a longitudinal axis of the sole structure, each individual support of the first plurality of supports engaging a respective lobe of the cushion member (Annotated figs. 1 and 10 show the first plurality of individual supports being spaced apart and engaging a respective lobe).
Regarding Claim 12, Dojan et al. teaches all of the limitations of the sole structure of Claim 11, as discussed in the rejections above. Dojan et al. further teaches wherein the plate includes a medial leg (see annotated Fig.) extending along a medial side of the sole structure, a lateral leg (see annotated Fig.) extending along a lateral side of the sole structure, and a gap (see annotated Fig.) disposed between and defined by the medial leg and the lateral leg (annotated fig. 10 shows the medial and lateral legs extending along the medial and lateral sides, respectively, with a gap formed between the medial and lateral legs).
Regarding Claim 13, Dojan et al. teaches all of the limitations of the sole structure of Claim 12, as discussed in the rejections above. Dojan et al. further teaches wherein the medial leg is attached to the lateral leg by an arcuate segment (see annotated Fig.) extending along a posterior end of the sole structure (Annotated fig. 10 shows the medial and lateral legs being attached by a posterior arcuate segment).
Regarding Claim 14, Dojan et al. teaches all of the limitations of the sole structure of Claim 13, as discussed in the rejections above. Dojan et al. further teaches wherein the medial leg is spaced apart and separated from the lateral leg at an anterior end of the sole structure (Annotated fig. 10 shows the medial and lateral legs being spaced apart and separated from one another at an anterior end of the sole structure).
Regarding Claim 16, Dojan et al. teaches all of the limitations of the sole structure of Claim 11, as discussed in the rejections above. Dojan et al. further teaches wherein adjacent supports of the first plurality of supports are separated from one another by a gap (see annotated Fig.) (annotated fig. 10 shows the supports being separated from one another by a gap).
Regarding Claim 17, Dojan et al. teaches all of the limitations of the sole structure of Claim 11, as discussed in the rejections above. Dojan et al. further teaches wherein the cushion member (30) is a fluid-filled chamber (paragraph [0064], “a fluid-filled bladder 30”).
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Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1, 4, 5, 7, 11, and 17 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 9 of U.S. Patent No. 12290135. Although the claims at issue are not identical, they are not patentably distinct from each other because as disclosed, the differences are minor and obvious. See chart below:
Instant App '688
Patent '135
1
A sole structure for an article of footwear, the sole structure comprising: a cushion member extending from a forefoot region to a heel region of the sole structure and including a plurality of lobes arranged in series along a peripheral region of the sole structure; and a cushion support disposed between the cushion member and an upper of the article of footwear and including a first plurality of individual supports spaced apart from one another along a longitudinal axis of the sole structure, each individual support of the first plurality of supports engaging a respective lobe of the cushion member.
1
A sole structure comprising: a cushion member including a first series of lobes arranged from a forefoot region to a heel region along one of a medial side and a lateral side of the sole structure and a second series of lobes disposed between the medial side and the lateral side of the sole structure, the second series of lobes cooperating to define a generally U-shaped recess; and a chassis including a cushion support, a plate, and a first series of supports each aligned and in contact with a respective lobe of the first series of lobes, the cushion support defining a first portion of each of the first series of supports and including a first material in contact with a top surface of the cushion member, and the plate defining a second portion of each of the first series of supports and including a second material different than the first material and in contact with the top surface of the cushion member.
4
The sole structure of Claim 1, wherein the cushion member is a fluid-filled chamber.
9
The sole structure of Claim 1, wherein the cushion member is one of a foam element and a fluid-filled bladder…
5
The sole structure of Claim 1, further comprising a plate disposed between the cushion support and the upper.
1
...a chassis including a cushion support, a plate…
7
The sole structure of Claim 5, wherein the plate includes a second plurality of supports that are spaced apart from one another along the longitudinal axis of the sole structure, each individual support of the second plurality of supports engaging a respective lobe of the cushion member.
1
...the plate defining a second portion of each of the first series of supports and including a second material different than the first material and in contact with the top surface of the cushion member.
11
A sole structure for an article of footwear, the sole structure comprising: a cushion member extending from a forefoot region to a heel region of the sole structure and including a plurality of lobes arranged in series along a peripheral region of the sole structure; and a plate disposed between the cushion member and an upper of the article of footwear and including a first plurality of individual supports spaced apart from one another along a longitudinal axis of the sole structure, each individual support of the first plurality of supports engaging a respective lobe of the cushion member.
1
A sole structure comprising: a cushion member including a first series of lobes arranged from a forefoot region to a heel region along one of a medial side and a lateral side of the sole structure and a second series of lobes disposed between the medial side and the lateral side of the sole structure, the second series of lobes cooperating to define a generally U-shaped recess; and a chassis including a cushion support, a plate, and a first series of supports each aligned and in contact with a respective lobe of the first series of lobes, the cushion support defining a first portion of each of the first series of supports and including a first material in contact with a top surface of the cushion member, and the plate defining a second portion of each of the first series of supports and including a second material different than the first material and in contact with the top surface of the cushion member.
17
The sole structure of Claim 11, wherein the cushion member is a fluid-filled chamber.
9
The sole structure of Claim 1, wherein the cushion member is one of a foam element and a fluid-filled bladder…
Conclusion
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/HALEY A SMITH/Primary Examiner, Art Unit 3732