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 .
DETAILED ACTION
Response to Amendment
Applicant’s amendment filed April 28, 2026 has been received, Claims 1-23 are currently pending.
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.
1. Claim(s) 1-5, 13, 15, and 18-222 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mueller (US 2020/0354867) in view of Oordt (US 2020/0022457).
Regarding Claim 1, Mueller discloses a method of manufacturing a knit material, the method comprising: simultaneously knitting a knit outer face layer (i.e. outer knit layer 1), a knit inner face layer (i.e. inner knit layer 1), and a knit intermediate layer (2) with one another to define a unitary knit structure (as seen in Fig.2; para.21); and wherein said knitting is such that the knit intermediate layer is disposed between the knit outer face layer and the knit inner face layer at a plurality of first zones (11) and absent from or present in a lesser amount or density in a plurality of second zones (12)(as seen in Fig.2), the first zones alternating with the second zones in a longitudinal direction (as seen in Fig.2), and the unitary knit structure having a greater modulus of elasticity in the longitudinal direction in the first zones than in the second zones (i.e. 11 are thicker and therefore would be stiffer/greater modulus of elasticity along the stripe than 12), and having greater breathability in the second zones than in the first zones (i.e. the second zones are thinner and therefore would have greater breathability than the thicker first zones). Mueller does not disclose the knit material forming a footwear upper defining a forefoot region, a midfoot region, and a heel region of the footwear upper; the first zones alternating with the second zones in a longitudinal direction of the footwear upper. However, Oordt teaches a footwear upper (100) formed of a seamless knit material (Abstract); the integrally knit material defining a forefoot region, a midfoot region, and a heel region of the footwear upper (as seen in Fig.1); and having first zones (132) alternating with second zones (136) in a longitudinal direction of the footwear upper (as seen in Fig.1).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have formed the knit material of Mueller into a footwear upper having first zones alternating with second zones in a longitudinal direction of the footwear upper, as taught by Oordt, in order to provide a knit upper with a decorative appearance desired by the user, for aesthetic purposes. When in combination Mueller and Oordt teach the knit outer face layer, knit inner face layer, and knit intermediate layer are integrally knit with one another to define a forefoot region, a midfoot region, and a heel region of the footwear upper.
Regarding Claim 2, When in combination, Mueller and Oordt a method of manufacturing of claim 1, further comprising: assembling the unitary knit structure in an article of footwear such that the knit outer face layer (Mueller: i.e. outer knit layer 1) is disposed at an outer side of the unitary knit structure and the knit inner face layer (Mueller: i.e. inner knit layer 1) is disposed at an inner side of the unitary knit structure (Mueller: as seen in Fig.2 & Oordt: as seen in Fig.1-2).
Regarding Claims 3 and 5, When in combination, Mueller and Oordt teach a method of manufacturing of claim 1, wherein said knitting is such that: an average fore-aft width of the second zones in the forefoot region (12 of Mueller/136 of Oordt in the forefoot) is greater than an average fore-aft width of the second zones in the heel region (12 of Mueller/136 of Oordt in the heel); and the second zones progressively increase in fore-aft width in a forward direction at least from the midfoot region to the forefoot region (as seen in Fig.1 of Oordt). Mueller and Oordt do not explicitly disclose an average fore-aft width of the first zones in the heel region is greater than an average fore-aft width of the first zones in the forefoot region; and the first zones progressively increase in fore-aft width in a rearward direction at least from the forefoot region to the midfoot region. However, it would have been obvious to one having ordinary skill in the art before the effective filing date to have formed the fore-aft width of the first zones in the heel region of modified Mueller to be greater than an average fore-aft width of the first zones in the forefoot to midfoot region, in order to provide a shoe upper with the pattern desired by the user, for aesthetic purposes. Further, it would have been an obvious matter of design choice to one skilled in the art before the effective filing date of the claimed invention to construct an average fore-aft width of the first zones in the heel region to be greater than an average fore-aft width of the first zones in the forefoot region, since applicant has not disclosed that this solves any stated problem or is anything more than one of numerous shapes or configurations a person of ordinary skill in the art would find obvious for the purpose of providing the desired decorative appearance. In re Dailey and Eilers, 149 USPQ 47 (1966).
Regarding Claim 4, When in combination, Mueller and Oordt teach a method of manufacturing of claim 3, wherein said knitting is such that boundaries between adjacent ones of the first zones (11 of Mueller/132 of Oordt in the forefoot) and the second zones (12 of Mueller/136 of Oordt in the forefoot) extend substantially linearly in a transverse direction of the footwear upper (as evidenced by Fig.1 & 2 of Oordt).
Regarding Claim 13, Mueller discloses a method of manufacturing of claim 1, wherein said knitting is such that the knit inner face layer, the knit outer face layer, and the knit intermediate layer (para.4). Mueller does not disclose comprise the yarns being recyclable by melting the yarns and re-extruding melted material of the melted yarns. However, it would have been an obvious matter of design choice to one skilled in the art before the effective filing date of the claimed invention to have formed the yarns of Mueller to be recyclable by melting the yarns and re-extruding melted material of the melted yarns in order to reduce waste and environmental impact. It has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. See MPEP 2144.07.
Regarding Claim 15, Mueller discloses a method of manufacturing of claim 1, wherein said knitting is such that the unitary knit structure is substantially free of yarn comprising a thermoset material (i.e. Mueller does not disclose the use of a thermoset yarn material.
Regarding Claim 18, Oordt further teaches a method of manufacturing of claim 1, further comprising: forming an ankle opening (140,142) in the unitary knit structure beginning at a rear edge of the unitary knit structure and ending at the rear edge of the unitary knit structure. Oordt does not explicitly disclose cutting an ankle opening beginning at a rear edge of the unitary knit structure and ending at the rear edge of the unitary knit structure. However, Oordt does teach cutting material elements of an upper (para.5).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have formed the ankle opening of Oordt by cutting, as also disclosed by Oordt, in order to provide the upper in a shape that can be easily assembled into footwear.
Regarding Claim 19, When in combination, Mueller and Oordt teach a method of manufacturing of claim 1, further comprising: securing a sole structure (Oordt: 110) directly to an outer surface of the knit outer face layer along an outer perimeter of the unitary knit structure (of Mueller; as evidenced by Fig.1 of Oordt; para.20).
Regarding Claim 20, When in combination, Mueller and Oordt teach a method of manufacturing of claim 1, wherein said knitting is such that the knit inner face layer and the knit outer face layer are coextensive (Mueller: as seen in Fig.2), one-piece layers, each extending to and defining an entire outer perimeter of the unitary knit structure including a medial edge, a lateral edge, a rear edge, and a front edge and characterized by an absence of sewn seams (Oordt: as seen in Fig.1 & 2).
Regarding Claim 21, Mueller discloses a method of manufacturing of claim 1, wherein the knit intermediate layer (2) is a one-piece, continuous layer that is coextensive with the knit outer face layer (i.e. outer knit layer 1) and the knit inner face layer (i.e. inner knit layer 1)(as seen in Fig.1-3; para.7, 11, 21 & 23, Claim 5).
Regarding Claim 22, Mueller discloses a method of manufacturing of claim 1, wherein the knit intermediate layer (2) is integrally knit and interlooped (via tuck loops) with the knit outer face layer and the knit inner face layer (as seen in Fig.1-3; para.7, 11, 21 & 23, Claim 5).
2. Claim(s) 6-10 and 23 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mueller (US 2020/0354867) and Oordt (US 2020/0022457), in view of Blore (US 4,133,191).
Regarding Claim 6, Mueller and Oordt disclose the invention substantially as claimed above. Mueller does not disclose the knit outer face layer comprises a mesh pattern including first knitted-in holes of a first size; and the knit inner face layer comprises a mesh pattern including second knitted-in holes of a second size larger than the first size and overlapping with the first knitted-in holes. However, Blore discloses a knit material having a knit outer face layer (i.e. back layer with smaller mesh holes) comprises a mesh pattern including first knitted-in holes of a first size (as seen in Fig.3); and a knit inner face layer (i.e. front layer with larger mesh holes) comprises a mesh pattern including second knitted-in holes of a second size larger than the first size and overlapping with the first knitted-in holes (as seen in Fig.3; Col.4, lines 53-55).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have formed the knit outer and inner face layers of modified Mueller to have knit holes, with the knit inner face layer having holes larger than the knit outer face layer holes, as taught by Blore, in order to provide a knit material which is breathable and keeps a wearer's foot dry during use.
Regarding Claim 7, When in combination, modified Mueller and Blore teach a method of manufacturing of claim 6, wherein the knit outer face layer (of Mueller) does not include the second knitted-in holes (i.e. front layer with larger mesh holes of Blore are not present in the outer face layer of Mueller) such that a surface of the knit outer face layer is smoother (i.e. has smaller holes) than a surface of the knit inner face layer at each of the first zones and at each of the second zones (Mueller: Fig.2 & Blore: Fig.3).
Regarding Claim 8, When in combination, modified Mueller and Blore teach a method of manufacturing of claim 6, wherein said knitting is such that: the first knitted-in holes of the knit outer face layer each have a first maximum length in the longitudinal direction (as seen in Fig.3 of Blore); the second knitted-in holes of the knit inner face layer each have a second maximum length in the longitudinal direction (as seen in Fig.3 of Blore); and the second maximum length is from about two to about four times the first maximum length (as seen in Fig.3 of Blore, the length of the larger mesh holes in the front layer are “about” two times the length of the smaller mesh holes in the back layer).
Regarding Claim 9, When in combination, modified Mueller and Blore teach a method of manufacturing of claim 8, wherein the second maximum length is greater than a maximum width of each of the second knitted-in holes such that the modulus of elasticity of the unitary knit structure in the second zones is greater in the longitudinal direction than in a transverse direction (see annotated Figure below; i.e. the knit hole dimensions would be capable of providing a modulus of elasticity of the unitary knit structure in the second zones is greater in the longitudinal direction than in a transverse direction).
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Regarding Claim 10, When in combination, modified Mueller and Blore teach a method of manufacturing of claim 6, wherein said knitting is such that: the knit outer face layer does not include the second knitted-in holes (i.e. front layer with larger mesh holes of Blore are not present in the outer face layer of Mueller) and the knit inner face layer does not include the first knitted-in holes (i.e. back layer with smaller mesh holes of Blore are not present in the inner face layer of Mueller); the knit outer face layer includes a first plurality of yarns (Mueller: para.4; i.e. double threaded), the knit inner face layer includes a second plurality of yarns separate and distinct from the first plurality of yarns (Mueller: para.4), the first plurality of yarns are not included in the knit inner face layer and the second plurality of yarns are not included in the knit outer face layer (i.e. the yarns forming the outer face layer of Mueller are not present in the inner face layer, and vice versa, as they are distinct layers); perimeters of the first knitted-in holes are defined by the first plurality of yarns and not by the second plurality of yarns (i.e. back layer with smaller mesh holes of Blore are defined by the first plurality of yarns of Mueller and not by the second plurality of yarns of Mueller); and perimeters of the second knitted-in holes are defined by the second plurality of yarns and not by the first plurality of yarns (i.e. front layer with larger mesh holes of Blore are defined by the second plurality of yarns of Mueller and not by the first plurality of yarns of Mueller).
3. Claim(s) 11-12 and 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mueller (US 2020/0354867) and Oordt (US 2020/0022457), in view of Sokolowski (US 2008/0110049).
Regarding Claims 11-12, Mueller and Oordt disclose the invention substantially as claimed above. Mueller further discloses that the knit outer face layer and the knit inner face layer can be made of any suitable yarn, can be chosen so as to depend on the desired functionality of the knitted fabric. Mueller does not disclose wherein the knit outer face layer comprises one or more monofilament yarns and the knit inner face layer comprises one or more multi-filament yarns; said knitting is such that the knit inner face layer comprises one or more recycled drawn polyester multi-filament yarns. However, Sokolowski teaches a knit upper which may be formed of natural or synthetic fibers/filaments created as a monofilament yarn or a multifilament, in order to impart a variety of physical properties such as strength, stretch, support, stiffness, recovery, fit, and form; said knitting is such that the knit inner face layer comprises one or more drawn polyester multi-filament yarns (para.6 & 50-51).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have formed the knit outer face layer of Mueller with a monofilament yarn and formed the knit inner face layer of Mueller with a drawn polyester multi-filament yarn, as taught by Sokolowski, in order to provide a knit upper that imparts the desired physical properties. Further, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. See MPEP 2144.07.
Mueller, Oordt, and Sokolowski disclose the invention substantially as claimed above. Modified Mueller does not disclose the drawn polyester multi-filament yarn being recycled. However, it would have been obvious to one having ordinary skill in the art before the effective filing date to have formed the drawn polyester multi-filament yarn of modified Mueller of drawn polyester multi-filament, in order to reduce waste and environmental impact.
Regarding Claim 14, Mueller and Oordt disclose the invention substantially as claimed above. Mueller further discloses that the knit outer face layer and the knit inner face layer can be made of any suitable yarn, can be chosen so as to depend on the desired functionality of the knitted fabric. Mueller does not disclose wherein said knitting is such that: the knit outer face layer comprises drawn polyester monofilament yarns; and the knit inner face layer comprises drawn polyester multi-filament yarns; and the knit intermediate layer comprises polyester yarns. However, Sokolowski teaches a knit upper which may be formed of natural or synthetic fibers/filaments created as a monofilament yarn or a multifilament, in order to impart a variety of physical properties such as strength, stretch, support, stiffness, recovery, fit, and form; said knitting is such that the knit inner face layer comprises one or more drawn polyester multi-filament yarns (para.6 & 50-51).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have formed the knit outer face layer, knit inner face layer, and the knit intermediate layer of Mueller with drawn polyester monofilament yarns, as taught by Sokolowski, in order to provide a knit upper that imparts the desired physical properties. Further, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. See MPEP 2144.07.
Mueller, Oordt, and Sokolowski disclose the invention substantially as claimed above. Modified Mueller does not disclose the knit intermediate layer comprises cationic dyed polyester yarns. However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have dyed the yarns of modified Mueller with cationic dying, in order to provide the knit upper with the desired color. Additionally, it is noted that imparting color to a yarn by dying is generally recognized as being within the level of ordinary skill in the art. Further, it would have been an obvious matter of design choice to one skilled in the art at the time the invention was made to construct the yarns of modified Mueller to be dyed with cationic dying, since applicant has not disclosed that such solves any stated problem or is for any particular purpose other than aesthetics.
4. Claim(s) 16-17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mueller (US 2020/0354867) and Oordt (US 2020/0022457), in view of Alfaro (US 2005/0268497)
Regarding Claims 16 and 17, Mueller and Oordt disclose the invention substantially as claimed above. Modified Mueller does not disclose fusing or stitching a textile comprising a thermoset material to the unitary knit structure; and wherein the textile is fused to or stitched to the unitary knit structure to define an ankle collar. However, Alfaro teaches an upper (14; para.9) comprising fusing or stitching (40; para.38) a textile (39) comprising a thermoset material (para.39) to the unitary knit structure; and wherein the textile is fused to or stitched to the unitary knit structure to define an ankle collar (as seen in Fig.1).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have formed the upper of modified Mueller to include a textile that is stitched to the unitary knit structure to define an ankle collar, as taught by Alfaro, in order to provide a durable outer layer which resists abrasion.
5. Claim(s) 23 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mueller (US 2020/0354867) and Oordt (US 2020/0022457), in view of Suzuki (US 2023/0200481).
Regarding Claim 23, Mueller and Oordt disclose the invention substantially as claimed above. Mueller discloses the knit intermediate layer forms part of the outer surface (as seen in Fig.1-3; para.7, 11, 21 & 23, Claim 5, layer 2 forms part of the outer surface of 1 as it is connected by tuck loops to 1). Mueller does not disclose wherein the knit intermediate layer comprises portions that are exposed at an outer surface of the unitary knit structure through knitted-in holes of the knit outer face layer, such that the knit intermediate layer forms part of the outer surface.However, Suzuki discloses an upper formed of a knit material (100; para.33) having a knit outer face layer (102) comprising knitted-in holes (120) and an intermediate layer (103)(as seen in Fig.3 & 4); the knit intermediate layer comprises portions (i.e. portions of 103 lining the hole 120) that are exposed at an outer surface of the unitary knit structure through the knitted-in holes (i.e. at the side walls of the holes) of the knit outer face layer, such that the knit intermediate layer forms part of the outer surface (as seen in Fig.4).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have formed the knit outer face layer of modified Mueller to have knit holes, as taught by Suzuki, in order to provide a knit material which is breathable and keeps a wearer's foot dry during use.
Response to Arguments
Applicant's arguments filed April 28, 2026 have been fully considered but they are not persuasive.
6. Applicant’s Remarks: Applicant asserts Mueller does not describe a third knit layer disposed between the two layers; instead, the described structure remains a two-layer fabric throughout, with spacer threads intermittently extending between the layers to control thickness or cushioning. Mueller’s pile or spacer threads are individual connector yarns, not a knit layer formed by yarns and positioned between face layers. Mueller’s pile threads do not form any such loop-based layered knit architecture and are not described as participating with or interlooping in the manner of a knit layer.
Examiner’s Response: Examiner respectfully disagrees. Mueller plainly details that the pile/spacer yarns are knit at the same time as the outer and inner knit layers, connecting the inner and outer layers by way of tuck loops (as seen in Fig.1-3; para.7, 11, 21 & 23, Claim 5). Therefore, intermediate layer 2 of Mueller is a knit layer formed by yarns that are looped with and positioned between the inner and outer layers. For these reasons, Applicant’s argument is not found persuasive.
7. Applicant’s Remarks: Applicant asserts Mueller never describes reducing or omitting a knit layer by zone; the outer layers remain present throughout, and the pile threads merely vary in elasticity.
Examiner’s Response: Examiner respectfully disagrees. Mueller clearly shows “wherein said knitting is such that the knit intermediate layer is disposed between the knit outer face layer and the knit inner face layer at a plurality of first zones (11) and absent from or present in a lesser amount or density in a plurality of second zones (12)(as seen in Fig.2 & 3, which clearly show a “lesser amount” of 2 in zones 12 as the height distance is shorter)”. For these reasons, Applicant’s argument is not found persuasive.
8. Applicant’s Remarks: Applicant asserts Mueller does not disclose containment, footwear stability, or breathability as any functional or technical result of its spacer fabric, nor does it measure or describe directional modulus or breathability. The Office’s assertion that thickness differences “would” result in these properties relies on unsupported inherency assumptions, not on disclosures in the cited art.
Examiner’s Response: Examiner respectfully disagrees. First, Claim 1 recites “the unitary knit structure having a greater modulus of elasticity in the longitudinal direction in the first zones than in the second zones, and having greater breathability in the second zones than in the first zones”. Applicant provides no specific claimed structure which provides these functions. Therefore, Mueller does disclose “the unitary knit structure having a greater modulus of elasticity in the longitudinal direction in the first zones than in the second zones (i.e. 11 are thicker and therefore would be stiffer/greater modulus of elasticity along the stripe than 12), and having greater breathability in the second zones than in the first zones (i.e. the second zones are thinner and therefore would have greater breathability than the thicker first zones)”, inasmuch as has been claimed by Applicant. If Applicant intends for a specific structure to attain the claimed functionality, then such structure should be explicitly claimed. For these reasons, Applicant’s argument is not found persuasive.
9. Applicant’s Remarks: Applicant asserts none of the secondary references not disclose, teach, or suggest (i) an intermediate knit layer disposed between face layers, (ii) zonal presence or reduction/absence of such a layer, or (iii) a layered knit construction that benefits containment and breathability. Combining any of the secondary references with Mueller therefore requires hindsight reconstruction rather than a teaching or suggestion found in this cited art.
Examiner’s Response: Examiner respectfully notes that none of the secondary references were used to teach an intermediate knit layer disposed between face layers, zonal presence or reduction/absence of such a layer, or a layered knit construction that benefits containment and breathability. Mueller clearly discloses all of these elements. Further, Applicant does not address the individual combinations and motivations between the secondary references and Mueller. Therefore, Applicant’s assertion that such combinations require hindsight reconstruction is moot, as no arguments were specifically presented detailing what would be considered hindsight reconstruction. All of the secondary references are knit uppers, most multi-layered, which teach known knitting structures and techniques. For these reasons, Applicant’s argument is not found persuasive.
In view of Applicant's new claims, the search has been updated, and new grounds of rejection have been identified and applied. Applicant's arguments, with regard to the new claims, have been considered but are moot in view of the new modified ground(s) of rejection.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MEGAN E LYNCH whose telephone number is (571)272-3267. The examiner can normally be reached Monday to Friday, 8:00am-4:00pm EST.
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/MEGAN E LYNCH/Primary Examiner, Art Unit 3732
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