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 .
Claims 1-15 are being treated on the merits.
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.
Claims 1-7, 9-15 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Haimerl (US 2010/0064453).
Regarding Claim 1, Haimerl discloses a waterproof and water vapor permeable footwear article (Para. 2, Figures 1-3) comprising.an upper (13), an insole (33), a spacer (17), and a sole (41); wherein the upper comprises at least an outer material (12, 19, Figures 14 & 15) and a waterproof and water vapour permeable membrane (16) laminated to the inside facing surface of the outer material, wherein the spacer comprises a channel structure (Para. 93 & Figure 1-5); wherein the spacer is attached to the inside facing surface of the upper (Figures 1-5, 14 & 15); and wherein the sole is an injected sole (Para. 113, 114 & 116).
Regarding Claim 2, Haimerl discloses the spacer is selected from a spacer tape, a frame board, or a stuck board (17, Figures 1-5, 14 & 15).
Regarding Claim 3, Haimerl discloses the spacer is selected from a windows board with a spacer material or a window stuck board with a spacer material (17, Figures 1-5, 14 & 15).
Regarding Claim 4, Haimerl discloses the spacer is attached to the bottom end of the waterproof and water vapour permeable membrane of the upper (Figures 1-5, 14 & 15).
Regarding Claim 5, Haimerl discloses the spacer is attached to upper with adhesive or with a seam (stitch, Figures 1-5, 14 & 15).
Regarding Claim 6, Haimerl discloses comprising a liner (18).
Regarding Claim 7, Haimerl discloses the liner comprises at least a liner textile or at least a liner textile and a waterproof and water vapour permeable membrane (Figures 1-5, 14 & 15).
Regarding Claim 9, Haimerl discloses the bottom end of the liner extends beyond the bottom end of the upper (Figures 1-5, 14 & 15).
Regarding Claim 10, Haimerl discloses the channels of the channel structure extend horizontally in the waterproof and water vapour permeable footwear article (Figures 1-5, 14 & 15).
Regarding Claim 11, Haimerl discloses the channels of the channel structure extend vertically in the waterproof and water vapour permeable footwear article (Figures 1-5, 14 & 15).
Regarding Claim 12, Haimerl discloses the channels comprise a wall on at least 60% of their circumference (Figures 1-5, 14 & 15)..
Regarding claims 13-15, if a prior art, in its normal and usual operation, would necessarily describe a device capable of performing the steps of the method or process, then the device claimed will be considered to be inherent by the prior art process or method. When the prior art process or method is the same as a process or method described in the specification for describing the claimed device, it can be assumed the process or method will inherently describe the claimed device capable of performing the different steps of the process or method.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 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.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Haimerl (US 2010/0064453) in view of Wiener (WO 01/12003 A1)
Regarding Claim 8, Haimerl does not specifically discloses the liner together with a nonwoven forms a bootie. However, Wiener disclose using a liner which can be formed of a nonwoven to form a bootie inside of a waterproof shoe (Page 1, lines 29-34, Page 9, lines 14-25). It would have been obvious to one of ordinary skill in the art before the effective filing date to include a bootie, as taught by Wiener, to the footwear of Haimerl, in order to provide further comfort, functionality and optimize a desired fit.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KATHARINE KANE whose telephone number is (571)272-3398. The examiner can normally be reached Mon-Fri 9am-6pm EST.
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/KATHARINE G KANE/Primary Examiner, Art Unit 3732
