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 Species A and Species 1 in the reply filed on 12/15/2025 is acknowledged.
Claims 5-6, 12-14 withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species, there being no allowable generic or linking claim.
Regarding claim 6, the claim depends from claim 5, which was identified by Applicant as not reading on the elected species in the response filed 12/15/2025. Examiner agrees that claim 5 does not read on the elected species, therefore claim 6, which includes all of the limitations of claim 5 and further modifies the structure introduced in claim 5 by dependency, also does not read on the elected species.
Therefore, claims 1-4, 7-11, and 15 are presented for examination on the merits.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 7/18/2025 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
The listing of references in the specification is not a proper information disclosure statement. 37 CFR 1.98(b) requires a list of all patents, publications, or other information submitted for consideration by the Office, and MPEP § 609.04(a) states, "the list may not be incorporated into the specification but must be submitted in a separate paper." Therefore, unless the references have been cited by the examiner on form PTO-892, they have not been considered. Examiner notes that not all of the references that are listed in the “Background of the Invention” section or “Patent Literature” section were actually listed on the IDS that was submitted on 7/18/2025, and any references that were not listed on the IDS or cited on the PTO-892 have not been considered by the Examiner.
Drawings
The drawings are objected to because of the following informalities:
Throughout the drawings, there are very thin lines that do not show up well (the lead lines, arrows, and dimension markers often are too thin/light to be easily seen). 37 C.F.R. 1.84(l) requires “All drawings must be made by a process which will give them satisfactory reproduction characteristics. Every line, number, and letter must be durable, clean, black (except for color drawings), sufficiently dense and dark, and uniformly thick and well-defined. The weight of all lines and letters must be heavy enough to permit adequate reproduction.”
Regarding figure 1, the reference number “13” (which is defined in the specification as “upper”, does not appear to point to an upper.
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(4) because reference characters "10" and "13" have both been used to designate “upper”.
Figure 1a illustrates separate figures or views of the invention that are labeled with only one figure number. See MPEP 602V(u)(1) and 37 CFR 1.84, which states “different views must be numbered in consecutive Arabic numerals, starting with 1, independent of the numbering of the sheets and, if possible, in the order in which they appear on the drawing sheet(s). Partial views intended to form one complete view, on one or several sheets, must be identified by the same number followed by a capital letter.” The drawings should be amended so that each separate view of the invention is provided with its own figure label that is denote with a distinct number (or combination of a number and capital letter).
Figure 1b illustrates separate figures or views of the invention that are labeled with only one figure number. See MPEP 602V(u)(1) and 37 CFR 1.84, which states “different views must be numbered in consecutive Arabic numerals, starting with 1, independent of the numbering of the sheets and, if possible, in the order in which they appear on the drawing sheet(s). Partial views intended to form one complete view, on one or several sheets, must be identified by the same number followed by a capital letter.” The drawings should be amended so that each separate view of the invention is provided with its own figure label that is denote with a distinct number (or combination of a number and capital letter).
In figure 1b, reference numbers “12b” (upper outer edge), “13b” (ascend to central area), and “14b” (peripheral wall) do not appear to be pointing to structures that match the description of the reference numbers. 12b doesn’t appear to be pointing to an upper area, 13b doesn’t appear to be pointing to a central area, and 14b appears to be pointing to a space, not a wall.
Figure 3 illustrates separate figures or views of the invention that are labeled with only one figure number. See MPEP 602V(u)(1) and 37 CFR 1.84, which states “different views must be numbered in consecutive Arabic numerals, starting with 1, independent of the numbering of the sheets and, if possible, in the order in which they appear on the drawing sheet(s). Partial views intended to form one complete view, on one or several sheets, must be identified by the same number followed by a capital letter.” The drawings should be amended so that each separate view of the invention is provided with its own figure label that is denote with a distinct number (or combination of a number and capital letter).
In figure 7a, reference number “73a” (internal area of sole) does not appear to be pointing to anything, let alone an internal area. Reference number “74a” (external area) also doesn’t appear to be pointing to anything.
In figure 9, reference number “90” (transverse direction) doesn’t appear to be pointing to a direction. Reference number “91” is defined as “open and close” but it’s not clear how the arrow it is pointing to indicates that.
Figure 10 illustrates separate figures or views of the invention that are labeled with only one figure number. See MPEP 602V(u)(1) and 37 CFR 1.84, which states “different views must be numbered in consecutive Arabic numerals, starting with 1, independent of the numbering of the sheets and, if possible, in the order in which they appear on the drawing sheet(s). Partial views intended to form one complete view, on one or several sheets, must be identified by the same number followed by a capital letter.” The drawings should be amended so that each separate view of the invention is provided with its own figure label that is denote with a distinct number (or combination of a number and capital letter).
Figure 11 illustrates separate figures or views of the invention that are labeled with only one figure number. See MPEP 602V(u)(1) and 37 CFR 1.84, which states “different views must be numbered in consecutive Arabic numerals, starting with 1, independent of the numbering of the sheets and, if possible, in the order in which they appear on the drawing sheet(s). Partial views intended to form one complete view, on one or several sheets, must be identified by the same number followed by a capital letter.” The drawings should be amended so that each separate view of the invention is provided with its own figure label that is denote with a distinct number (or combination of a number and capital letter).
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
The abstract of the disclosure is objected to because it is less than 50-150 words in length and thus would fail to quickly inform a reader as to the gist of the technical disclosure. A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
Claim Objections
Claims 1-4, 7-11, 15 objected to because of the following informalities:
The markup on all of the claims, in particular the use of single brackets in combination with strikethroughs, is not appropriate. See MPEP 714(I)(C)(B) which describes the proper markup for claim amendments as follows: “The changes in any amended claim must be shown by strike-through (for deleted matter) or underlining (for added matter) with 2 exceptions: (1) for deletion of five or fewer consecutive characters, double brackets may be used (e.g., [[eroor]]); (2) if strike-through cannot be easily perceived (e.g., deletion of number "4" or certain punctuation marks), double brackets must be used (e.g., [[4]]). As an alternative to using double brackets, however, extra portions of text may be included before and after text being deleted, all in strike-through, followed by including and underlining the extra text with the desired change (e.g., number 4 as number 14 as ).” For the purposes of examination, the erroneously added single brackets will be ignored as they cause additional confusion; however, the extraneous brackets should still be formally deleted by Applicant in the next response.
Claim 1 ends in a comma, but it should end in a period. Each claim must begin with a capital letter and end with a period. See: Fressola v. Manbeck, 36 USPQ2d 1211 (D.D.C. 1995). See: MPEP 608.01(m).
Although “mm” is an abbreviation for “millimeter”, this abbreviation does not normally use a period; therefore, the additional periods after “mm” should be deleted in claims 2 and 3. Periods may not be used elsewhere in the claims except for abbreviations. See: Fressola v. Manbeck, 36 USPQ2d 1211 (D.D.C. 1995). See: MPEP 608.01(m).
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.
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.
Claims 1-4, 7-11, 15 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.
The claims are generally narrative and indefinite, failing to conform with current U.S. practice. They appear to be a literal translation into English from a foreign document and are replete with grammatical and idiomatic errors. Although every effort has been made to identify all issues of indefiniteness in the claims below, Examiner respectfully requests that Applicant review the claims thoroughly for indefinite language, including but not limited to what is identified and described below.
Regarding claim 1:
The claim recites “a tread in contact with the ground that rises perimetral with a wall along a vertical direction to an upper outer edge and a central area”. This limitation is narratively written and unclear. It appears that the term “tread” is being used unconventionally to refer to an entire sole/outsole portion, not just the tread portion. The phrase “in contact with the ground” is confusing because must the tread always be in contact with the ground? Or is it merely configured to be in contact with the ground? The phrase “rises perimetral with a wall along a vertical direction” is also confusing because it is not clear what wall is being referred to or what it means for a tread to “rise perimetral with a wall”. Is this limitation trying to claim that the sole has a perimetral wall (i.e., a sidewall)?
Further, the claim first recites “a central area” in line 7, then another “a central area” in line 12. It appears that these two instances of “central area” are supposed to be referring to different areas; however, this introduces confusion not only in this claim, but in further dependent claims, as it is unclear what “central area” is being referred to whenever “central area” is referenced. Examiner respectfully requests that Applicant clearly and explicitly differentiate between these two “central areas” in the claim language.
Further, the claim recites “said central area” in lines 16, 17, and 18. As detailed above, it is unclear which “central area” these instances of “said central area” are referring to.
Further, the claim recites “a perimetral cracking”. This appears to be a direct translation from a foreign language, and the term “cracking” in this claim and all dependent claims has been best interpreted by the Examiner as a groove or recess.
Further, the claim recites “said central area connected to the sole through the tread area, said central area also added to the sole in the inner tread area”. This limitation is unclear in combination with the previous limitation that defined “a tread in contact with the ground that rises perimetral with a wall along a vertical direction to an upper outer edge and a central area”, which implies that the tread/sole already includes the central area. Therefore, it is not clear whether the central area is part of the tread/sole or if it is a separate component that is “connected” or “added” to the tread/sole. It is also not clear what it means for the central area to be “connected to” and “also added to” to the sole, as the use of the term “also” implies that those are two separate requirements, but it is not clear what the difference between “connected to” and “added to” is. Further, “the tread area” and “the inner tread area” lack antecedent basis in the claim.
Further, “perimetral cracking” in page 2, line 2 lacks an article, so it is unclear whether this is referring to the same “perimetral cracking” that was previously introduced in the claim or not.
Further, the limitation “perimetral cracking has a variable thickness around the entire perimeter of the sole” is indefinite because it is unclear what is meant by “variable thickness around the entire perimeter of the sole”. Does the thickness need to constantly be varying around the perimeter? Or does it just need to have various thicknesses at different points? Further, the term “thickness” as used throughout the claims is confusing because it appears that “thickness” and “width” are used interchangeably in the specification and claims (see paragraph 61 of instant specification, which begins by stating “an example of variable thickness of the perimeter cracking is provided here” but goes on to describe “a perimetral cracking with a width limited to 3mm”, “the width of the perimetral cracking increases”, etc.); however those terms typically have different definitions. The terms have been interpreted in this claim and the dependent claims as interchangeable, but Examiner respectfully requests that the claims and disclosure be amended to have consistent terminology throughout for clarity.
Further, the claim recites “one or more groups of transverse cracking are arranged in the central area of the sole between the apical area and the heel area”. It is unclear which “central area” this instance of “central area” is referring to.
Further, the claim recites “said cracking differentiated by thickness and length”. It is unclear which “cracking” is being referred to by “said cracking”, as both perimetral cracking and transverse cracking have been introduced previously. The phrase “differentiated by thickness and length” is also confusing because differentiated introduces a comparison but it is unclear what is being compared. The cracking is differentiated from what by thickness and length?
Further, the claim recites “said groups also consisting of a single cracking”. This is confusing because, firstly, “said groups” does not follow from the previous introduction of “one or more groups”. Is one or more groups sufficient to meet the claim or are multiple groups now required? It is also unclear how multiple groups collectively could consist of only a single cracking (groove, recess). Is Applicant trying to claim that each group only has a single “cracking” (groove, recess)? That doesn’t appear to follow the disclosure, which describes the groups having three “crackings” (grooves, recesses). The use of “consisting of” adds to the confusion because “consisting of” delineates a closed group.
Regarding claim 2:
The claim recites “the perimetral cracking has a variable width along the entire inner perimeter of the sole”. Given the interpretation that “thickness” and “width” are being used interchangeably by Applicant, it is therefore unclear what this limitation is adding when claim 1 also already defined that the “perimetral cracking has a variable thickness around the entire perimeter of the sole”.
Further, the claim recites “an apical area”. Is this the same “apical area” that was introduced in claim 1? Is “a perimetral cracking” on page 2, line 11 referring to the same perimetral cracking introduced in claim 1 and referred to earlier in the claim?
Further, the claim recites “a forefoot area”. Is this the same “forefoot area” that was introduced in claim 1? Is “a perimetral cracking” on page 2, line 14 referring to the same perimetral cracking introduced in claim 1 and referred to earlier in the claim? The use of the term “its” also introduces indefiniteness because “its” is generic and lacks clarity regarding what component is being referred to specifically.
Further, the claim recites “an intermediate front area”. Is this the same “intermediate front area” that was introduced in claim 1? Is “a perimetral cracking” on page 2, line 16 referring to the same perimetral cracking introduced in claim 1 and referred to earlier in the claim? The use of the term “its” also introduces indefiniteness because “its” is generic and lacks clarity regarding what component is being referred to specifically.
Further, the claim recites “a central area”. Is this referring to one of the “central areas” that was introduced in claim 1? Additionally, if this limitation is intended to be referring to a previously introduced “central area”, which “central area” is being referred to? Is “a perimetral cracking” on page 2, line 17-18 referring to the same perimetral cracking introduced in claim 1 and referred to earlier in the claim? The use of the term “its” also introduces indefiniteness because “its” is generic and lacks clarity regarding what component is being referred to specifically.
Further, the claim recites “intermediate rear area”. Firstly, this limitation is missing an article. Is this the same “intermediate rear area” that was introduced in claim 1? Is “a perimetral cracking” on page 2, line 20 referring to the same perimetral cracking introduced in claim 1 and referred to earlier in the claim? The use of the term “its” also introduces indefiniteness because “its” is generic and lacks clarity regarding what component is being referred to specifically.
Further, the claim recites “an area of the heel”. Is this supposed to be referring to the “heel area” that was introduced in claim 1? Is “a perimetral cracking” on page 3, line 1 referring to the same perimetral cracking introduced in claim 1 and referred to earlier in the claim? The use of the term “its” also introduces indefiniteness because “its” is generic and lacks clarity regarding what component is being referred to specifically.
Further, the use of “increases” and “decreases” is confusing because it is not clear in what direction the increase/decrease occurs. For instance, the limitation “increases its width from 3 mm to 4 mm” could either be referring to an increase in width in the direction from toe to heel, or an increase in width in the direction from heel to toe (the latter of which could also be described as a decrease in width in the direction from toe to heel). Based on the disclosure it appears that the terms “increase” and “decrease” are used in reference to the direction from toe to heel of the footwear, however the claim as written does not currently make that clear.
Regarding claim 3:
The claim recites “wherein four groups of transverse cracking are arranged in the central area of the sole”. Is this supposed to be further defining “one or more groups of transverse cracking” as introduced in claim 1? Or are these four groups in addition to the “one or more groups” that were previously introduced? Additionally, as detailed above, it is unclear which “central area” this instance of “the central area” is referring to.
Further, the claim recites “a first group of three cracking develop from the forefoot area to the intermediate front area, said cracking being characterized by a thickness of 2 mm”. Is this “first group” one of the “one or more groups of transverse cracking” as introduced in claim 1? Is it one of the “four groups of transverse cracking” as introduced previously in this claim? Is it in addition to both the “one or more groups” and “four groups”? Additionally, the term “develop” is confusing because it implies that the “cracking” is not initially present, but appears or is formed at some point, leading to confusion about whether an intermediate product/method step is being claimed. Further, “develop from the forefoot area to the intermediate front area” appears to imply that these “cracking” (grooves, recesses) are arranged in the direction from the forefoot area to the intermediate front area (i.e., a toe-to-heel direction of the sole, rather than a medial-lateral direction), but that interpretation is not supported by the disclosure. Moreover “said cracking” is confusing because it is not clear which of the previously introduced “cracking” the limitation is referring to (the perimetral cracking? The one or more groups of transverse cracking? The four groups of transverse cracking? The first group of three cracking collectively? An individual one of the three crackings in the first group of three crackings?), therefore it is also unclear what exactly needs to be “characterized by a thickness of 2 mm”.
Further, the claim recites “a second group of three cracking develop from the intermediate front area to the central one, characterized by a thickness of 4 mm”. Is this “second group” one of the “one or more groups of transverse cracking” as introduced in claim 1? Is it one of the “four groups of transverse cracking” as introduced previously in this claim? Is it in addition to both the “one or more groups” and “four groups”? Is it entirely separate from the “first group” previously introduced in the claim, or can the groups overlap? Additionally, the term “develop” is confusing because it implies that the “cracking” is not initially present, but appears or is formed at some point, leading to confusion about whether an intermediate product/method step is being claimed. Further, “develop from the intermediate front area to the central one” appears to imply that these “cracking” (grooves, recesses) are arranged in the direction from the intermediate front area to the central “one” (i.e., a toe-to-heel direction of the sole, rather than a medial-lateral direction), but that interpretation is not supported by the disclosure. Moreover “the central one” is confusing because it appears that Applicant is intending to refer to one of the previously introduced “central areas”; however, the use of different terminology (“one” instead of “area”) introduces confusion and uncertainty, and even if Applicant does intend to refer to one of the previously introduced “central areas”, it is unclear which one. Additionally, it is not clear what exactly needs to be “characterized by a thickness of 4 mm” (the entire second group of three cracking collectively? Each one of the “crackings” individually?).
Further, the claim recites “a third group of three cracking develop from the central zone to the intermediate rear one, characterized by a thickness of 4 mm excluding cracking in the central area of the sole, which is 6 mm”. Is this “third group” one of the “one or more groups of transverse cracking” as introduced in claim 1? Is it one of the “four groups of transverse cracking” as introduced previously in this claim? Is it in addition to both the “one or more groups” and “four groups”? Is it entirely separate from the “first group” and “second group” previously introduced in the claim, or can the groups overlap? Additionally, the term “develop” is confusing because it implies that the “cracking” is not initially present, but appears or is formed at some point, leading to confusion about whether an intermediate product/method step is being claimed. Further, “develop from the central zone to the intermediate rear one” appears to imply that these “cracking” (grooves, recesses) are arranged in the direction from the central “zone” to the intermediate rear “one” (i.e., a toe-to-heel direction of the sole, rather than a medial-lateral direction), but that interpretation is not supported by the disclosure. Moreover “the central zone” and “the intermediate rear one” is confusing because it appears that Applicant is intending to refer to one of the previously introduced “central areas” and the previously introduced “intermediate rear area”; however, the use of different terminology (“zone” or “one” instead of “area”) introduces confusion and uncertainty, and even if Applicant does intend to refer to one of the previously introduced “central areas”, it is unclear which one. Additionally, it is not clear what exactly needs to be “characterized by a thickness of 4 mm” (the entire third group of three cracking collectively? Each one of the “crackings” individually?). The limitation “excluding cracking in the central area of the sole, which is 6 mm” is confusing because the previous recitation appears to indicate that the “third group of cracking” is located in the “central area”, so it is not clear what exactly is being excluded and what is being referred to by “which is 6 mm”.
Further, the claim recites “a fourth group of three cracking that goes from the intermediate rear area to the heel area, characterized by a thickness of 2 mm”. Is this “fourth group” one of the “one or more groups of transverse cracking” as introduced in claim 1? Is it one of the “four groups of transverse cracking” as introduced previously in this claim? Is it in addition to both the “one or more groups” and “four groups”? Is it entirely separate from the “first group”, “second group”, and “third group” previously introduced in the claim, or can the groups overlap? Further, “goes from the intermediate rear area to the heel area” appears to imply that these “cracking” (grooves, recesses) are arranged in the direction from the intermediate rear area to the heel area (i.e., a toe-to-heel direction of the sole, rather than a medial-lateral direction), but that interpretation is not supported by the disclosure. Additionally, it is not clear what exactly needs to be “characterized by a thickness of 2 mm” (the entire fourth group of three cracking collectively? Each one of the “crackings” individually?).
Regarding claim 4:
The claim recites “an elasticity factor loses its linear and progressive character when subjected to a force along the vertical axis such as to expand said central area until contact with the upper outer edge and the sole wall”. It is not clear what the correlation is between the claimed sole and “an elasticity factor” because the claim does not clearly define what structure this “elasticity factor” corresponds to. The phrase “such as” also renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d). “The sole wall” also lacks antecedent basis in the claim.
Because it is unclear what structure is being claimed or described in this claim, the claim has not been additionally rejected under prior art below.
Regarding claim 7:
The claim recites “a dilating-type elastomeric polymer”. The addition of the word "type" to an otherwise definite expression (e.g., Friedel-Crafts catalyst) extends the scope of the expression so as to render it indefinite. Ex parte Copenhaver, 109 USPQ 118 (Bd. Pat. App. & Inter. 1955). See MPEP 2173.05(b)(III)(E).
Regarding claim 8:
The claim recites “one or more cracking part of the transverse cracking groups”. This is confusing because, firstly, “the transverse cracking groups” does not follow from the previous introduction of “one or more groups of transverse cracking” in claim 1. Is one or more groups sufficient to meet the claim or are multiple groups now required? It is also unclear what “one or more cracking part” refers to. Part of a single cracking (groove, recess)? Part of a single group?
Further, the claim recites “a dilating-type elastomeric polymer”. The addition of the word "type" to an otherwise definite expression (e.g., Friedel-Crafts catalyst) extends the scope of the expression so as to render it indefinite. Ex parte Copenhaver, 109 USPQ 118 (Bd. Pat. App. & Inter. 1955). See MPEP 2173.05(b)(III)(E).
Regarding claim 9:
The claim recites “the cracking part of the transverse cracking group”. There is insufficient antecedent basis for this limitation in the claim. “the transverse cracking group” does not follow from the previous introduction of “one or more groups of transverse cracking” in claim 1. Is one or more groups sufficient to meet the claim or is only a single group now required? It is also unclear what a “cracking part” refers to. Part of a single cracking (groove, recess)? Part of a single group?
Further, the claim recites “a dilating-type elastomeric polymer”. The addition of the word "type" to an otherwise definite expression (e.g., Friedel-Crafts catalyst) extends the scope of the expression so as to render it indefinite. Ex parte Copenhaver, 109 USPQ 118 (Bd. Pat. App. & Inter. 1955). See MPEP 2173.05(b)(III)(E).
Regarding claim 10:
The claim recites “the width variation of the perimetral cracking”. It appears that this limitation is possibly supposed to refer to the previous recitation in claim 1 “perimetral cracking has a variable thickness around the entire perimeter of the sole”, but due to the differences in the wording of the claim and claim 1 as currently written, it is not explicitly clear.
Further, the claim recites “the width variation of the perimetral cracking occurs near the reciprocal intersections of the section areas A/A’, B/B’, C/C’, D/D’, E/E’”. The term “near” is a relative term which renders the claim indefinite. The term “near” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear how close in proximity would be considered “near” by Applicant. Further, it is unclear what a “reciprocal intersection” is, let alone “reciprocal intersections of the section areas A/A’, B/B’, C/C’, D/D’, E/E’” as there is insufficient antecedent basis for both limitations in the claim.
Further, the claim recites “staying constant within the limits of each section area”. It is not clear what exactly is supposed to be “staying constant”.
Because it is unclear what structure is being claimed or described in this claim, the claim has not been additionally rejected under prior art below.
Regarding claim 11:
The claim recites “the perimetral cracking has a constant width along the entire inner perimeter of the sole”. Given the interpretation that “thickness” and “width” are used interchangeably, this limitation directly contradicts the previous recitation in claim 1 that “perimetral cracking has a variable thickness around the entire perimeter of the sole”. Therefore, it is unclear what this claim requires, as the perimetral cracking cannot have a variable thickness/width and a constant thickness/width around the entire perimeter at the same time.
Because it is unclear what structure is being claimed or described in this claim and it appears to directly contradict the claim from which it depends (claim 1), the claim has not been additionally rejected under prior art below.
The dependent claims inherit the deficiency by nature of dependency.
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.
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(s) 1, 7-9, 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Langvin (US 2020/0375309) in view of Dai (US 2024/0315391).
Regarding claim 1 as best understood by Examiner, Langvin discloses: A footwear sole of synthetic materials (see paragraph 43 describing first and second resilient polymeric materials), the sole comprising: a tread (202) in contact with the ground that rises perimetral with a wall (218) along a vertical direction to an upper outer edge and a central area (204), wherein said central area of the sole is delimited by a perimetral cracking (208) that runs along the entire inner perimeter of the sole separating said central area from the upper outer edge and the wall (“the outer peripheral surface 230 of the inner sole element 204 is spaced apart from and opposes the inner peripheral surface 216 of the outer sole element 202 to forma channel 208 between the inner sole element 204 and the outer sole element 202. Particularly, the channel 208 may be defined by the cooperation of the inner sole element 204, the recessed surface 214, and the outer sole element 202” paragraph 37; see figures 3-5), said central area connected to the sole through the tread area (“the bottom surface 228 may be joined to the recessed surface 214” paragraph 33), said central area also added to the sole in the inner tread area (“the bottom surface 228 may be joined to the recessed surface 214” paragraph 33), wherein perimetral cracking has a variable thickness around the entire perimeter of the sole (“the width W208 of the channel 208 may vary around the inner peripheral surface 216 and the outer peripheral surface 218” paragraph 38).
Langvin does not explicitly disclose: wherein one or more groups of transverse cracking are arranged in the central area of the sole between the apical area and the heel area, said cracking differentiated by thickness and length, said groups also consisting of a single cracking.
However, Dai teaches a midsole for footwear with one or more groups of transverse grooves arranged between an apical area and a heel area of the sole (see figure 7 showing grooves 2) that are filled with a non-Newtonian fluid (3; see paragraph 70), said cracking differentiated by thickness and length (as discussed in the 35 USC 112(b) rejections above, it is unclear what this limitation is describing, as it cannot be determined what cracking is being referred to nor what the referenced cracking is supposed to be differentiated from; however, as best can be understood by the Examiner, the grooves of Dai read on the claim as written because their presence causes a reduction in thickness of the sole overall and they vary in length in accordance with the shape of the midsole because they extend across the entire medial/lateral width of the midsole), said groups also consisting of a single cracking (as discussed in the 35 USC 112(b) rejections above, it is unclear what this limitation means; however, a group can be defined that consists of a single cracking (groove), therefore Dai is held to read on the claim insofar as can be understood). See also annotated figure 7 of Dai below showing how the sole can be divided into an apical area, forefoot area, intermediate front area, central area, intermediate rear area, and heel area as claimed.
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Annotated figure 7 of Dai showing the apical area, forefoot area, intermediate front area, central area, intermediate rear area, and heel areas as claimed. The individual grooves of Dai are also numbered from 1-11.
Dai teaches analogous art to the instant application in the field of footwear. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the instant application to add the transverse grooves 2 of Dai (as shown in figure 7) with the filler 3 of Dai to the inner sole 204 of Langvin in order to achieve a “more excellent” cushioning effect and “reduce a shear force in the horizontal direction generated at the ankle and knee joints, thereby reducing the occurrence of sports injuries” (Dai, paragraph 70). Langvin contemplates “the channel 208 may be filled with a pressurized gas, or any other suitable fluid” (paragraph 37). Therefore, for the same reasons of improving cushioning and reducing injuries as described in paragraph 70 of Dai, it would further have been obvious to also fill the chamber 208 of Langvin specifically with the filler 3 of Dai. Examiner notes that as modified, the apical area, forefoot area, intermediate front area, central area, intermediate rear area, and heel area for the sole of Langvin are defined as shown above in the annotated figure 7 of Dai.
Regarding claim 7 as best understood by Examiner, Langvin as modified discloses: The sole of claim 1, wherein the perimetral cracking is partially or totally filled with a dilating-type elastomeric polymer (Dai, “the filler 3 in this embodiment is a non-Newtonian fluid material […] concentrated solutions and suspensions of polymers, etc. are generally non-Newtonian fluids” paragraph 70; see all of paragraph 70 describing the details and response of the non-Newtonian fluid under different conditions; as modified, the cavity 208 of Langvin is filled with the non-Newtonian fluid).
Regarding claim 8 as best understood by Examiner, Langvin as modified discloses: The sole of claim 1, wherein one or more cracking part of the transverse cracking groups, are partially or totally filled with a dilating-type elastomeric polymer (Dai, “the filler 3 in this embodiment is a non-Newtonian fluid material […] concentrated solutions and suspensions of polymers, etc. are generally non-Newtonian fluids” paragraph 70; see all of paragraph 70 describing the details and response of the non-Newtonian fluid under different conditions; as modified, the transverse grooves are filled with the non-Newtonian fluid).
Regarding claim 9 as best understood by Examiner, Langvin as modified discloses: The sole of claim 1, wherein the perimetral cracking and the cracking part of the transverse cracking group are partially or totally filled with a dilating-type elastomeric polymer (Dai, “the filler 3 in this embodiment is a non-Newtonian fluid material […] concentrated solutions and suspensions of polymers, etc. are generally non-Newtonian fluids” paragraph 70; see all of paragraph 70 describing the details and response of the non-Newtonian fluid under different conditions; as modified, the cavity 208 of Langvin and the transverse grooves are filled with the non-Newtonian fluid).
Regarding claim 15 as best understood by Examiner, Langvin as modified discloses: A footwear (Langvin, 10), comprising: the sole, according to claim 1 (see 35 USC 103 rejection of claim 1 above).
Claim(s) 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Langvin/Dai, in view of Bunnell (US 2017/0079376).
Regarding claim 3 as best understood by Examiner, Langvin as modified discloses: The sole of claim 1, wherein four groups of transverse cracking are arranged in the central area of the sole, wherein a first group of three cracking develop from the forefoot area to the intermediate front area (see annotated figure 7 of Dai provided with the 35 USC 103 rejection of claim 1 above; grooves marked 1, 2, and 3 can be considered a first group of three), wherein a second group of three cracking develop from the intermediate front area to the central one (see annotated figure 7 of Dai provided with the 35 USC 103 rejection of claim 1 above; grooves marked 4, 5, and 6 can be considered a second group of three), wherein a third group of three cracking develop from the central zone to the intermediate rear one (see annotated figure 7 of Dai provided with the 35 USC 103 rejection of claim 1 above; grooves marked 6, 7, and 8 can be considered a third group of three), excluding cracking in the central area of the sole (see annotated figure 7 of Dai provided with the 35 USC 103 rejection of claim 1 above; groove marked 7 is in the central area), and wherein a fourth group of three cracking that goes from the intermediate rear area to the heel area (see annotated figure 7 of Dai provided with the 35 USC 103 rejection of claim 1 above; grooves marked 9, 10, and 11 can be considered a fourth group of three).
Langvin as modified does not explicitly disclose (as best understood by Examiner): said cracking [of the first group] being characterized by a thickness of 2 mm, [second group of three cracking] characterized by a thickness of 4 mm, [third group of three cracking] characterized by a thickness of 4 mm. excluding cracking in the central area of the sole, which is 6 mm, [fourth group of cracking] characterized by a thickness of 2 mm.
However, Bunnell teaches a footwear sole having multiple transverse grooves (30). Specifically Bunnell teaches “the grooves could have different depths, widths, and or spacing from one another, and could have different angles (i.e., adjacent walls of the sole plate 12 at different grooves could be at different relative angles). For example, grooves toward the middle of the series of grooves in the longitudinal direction could be wider than grooves toward the anterior and posterior ends of the series of grooves.” (paragraph 46).
Bunnell teaches analogous art to the instant application in the field of footwear. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the instant application to make the grooves of Langvin/Dai such that the grooves toward the middle are wider than the grooves toward the anterior and posterior ends, as taught by Bunnell, in order to improve the flexibility of the sole, and further it would have been obvious to one of ordinary skill in the art before the effective filing date of the instant application to make grooves 1/2/3 with a width of 2mm, grooves 4/5/6 with a width of 4mm, groove 7 with a width of 6 mm, groove 8 with a width of 4 mm, and grooves 9/10/22 with a width of 2 mm in light of Bunnell which teaches “the overall width of the one or more grooves (i.e., from the anterior end to the posterior end of the series of grooves) is selected to be sufficient to accommodate a range of positions of a wearer's metatarsal phalangeal joints based on population averages for the particular size of footwear” (paragraph 46), indicating that the particular width of the grooves can be optimized based on the particular geometry and anatomy of a wearer’s foot and for different sizes of footwear, and such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955). Examiner notes that Applicant has not provided any evidence of criticality for the particular widths claimed.
Allowable Subject Matter
Claim 2 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter:
Regarding claim 2, as best understood by Examiner, although Langvin discloses that the width/thickness of the perimeter groove can vary, the prior art does not disclose that the forefoot area is defined by section lines A-A’/B-B’, the intermediate front area is defined by section lines B-B’/C-C’, the central area is defined by section lines C-C’/D-D’, the intermediate rear area is defined by section lines D-D’/E-E’ as claimed (the section lines being the ones shown explicitly on the figures of the instant application), nor does it teach that the perimetral cracking has a width of 3 mm in the apical area, increases its width from 3 mm to 4 mm in the forefoot area, increases its width from 4 mm to 5 mm in the intermediate front area, increases its width from 5 mm to 6 mm in the central area, decreases its width from 6 mm to 3 mm in the intermediate rear area, and has a width of 3 mm in the heel area as claimed. Examiner notes that this indication of allowable subject matter is based on the Examiner’s best interpretation of the claim given the 35 USC 112(b) rejections presented above, which includes that “width” and “thickness” are used interchangeably and that the terms “increase” and “decrease” are used in reference to the direction from toe to heel of the footwear.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Covatch (US 2006/0123665) teaches a shoe with variously sized transverse grooves. Bunnell (US 10182612) teaches a shoe with transverse grooves that can be filled with a resilient material. Preman (US 5224280) teaches a shoe with a resilient member.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRIANNA T DUCKWORTH whose telephone number is (571)272-1458. The examiner can normally be reached M-F 9:00 am - 5:00 pm.
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/BRIANNA T. DUCKWORTH/ Examiner, Art Unit 3732
/PATRICK J. LYNCH/ Primary Examiner, Art Unit 3732