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 with traverse of Species A in the reply filed on 1/27/2026 is acknowledged. The traversal is on the ground(s) that there would not be a search burden to examine Species A and Species B together. This is not found persuasive because Species A and Species B have mutually exclusive features that require separate searches that use different search terms and different CPC classifications. Species A requires multiple different, separate membranes with different properties/characteristics that are joined together, and the join as claimed comprises an entirely separate structure (i.e., adhesive, tape, etc.), while Species B requires a single membrane with different properties/characteristics in different zones. The upper cannot simultaneously be made of multiple, separate membranes that are joined together AND be made of only a single membrane, therefore the species have mutually exclusive features. Uppers with separate pieces, such as those in Species A, may for example be classified in CPC A43B23/0295, while uppers made of a single unitary piece, such as those in Species B, may for example be classified in CPC A43B 23/042, and additionally the two species would require different text search terms due to their mutually exclusive features, so the species require different fields of search.
The requirement is still deemed proper and is therefore made FINAL.
Claim 10 is therefore withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected species, there being no allowable generic or linking claim. Claims 1-9 and 11-20 are presented for examination on the merits.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 5/1/2025 and 10/9/2025 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements are being considered by the examiner.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the “the value of the waterproofness of the first membrane region is greater than the value of the waterproofness of the second membrane region, and wherein the first membrane region is located closer to a lower surface of the upper than the second membrane region of the upper, the lower surface of the upper being configured to form a bite line with a sole when coupled thereto” as required by claim 5 must be shown or the feature(s) canceled from the claim(s). Examiner notes that the drawings currently show the second membrane region being more waterproof than the first membrane region and the second membrane region being located at the bite line, see also paragraph 103 which describes the configuration shown as follows: “The first membrane 1' located at the tongue region of the upper is more elastic than the second membrane 2' which is to be located at the bite line between a sole and the upper. The second membrane 2' is therefore more waterproof, i.e., having a higher waterproofness, than the first membrane 1'.”
Additionally, the “inner layer at least partially overlapped by the first membrane region and coupled to the second membrane region, and wherein the inner layer is at least partially overlapped by a connection region disposed between the first membrane region and the second membrane region” as required by claim 15 must be shown or the feature(s) canceled from the claim(s). There is currently no structure that is labeled as the “inner layer” on the figures, not even in figure 1 which is described as showing the inside of the upper (paragraph 103), and no description of such a feature in conjunction with the description of the figures.
Additionally, the “third membrane region located in an area of the upper different from the first and second membrane regions and having a third set of characteristics, wherein the value of the characteristic of the first set of characteristics and the value of the corresponding characteristic of the second set of characteristics are different from a value of the corresponding characteristic of the third set of characteristics” as required by claim 19 must be shown or the feature(s) canceled from the claim(s). There is currently no structure that is labeled as the “third membrane region” on the figures, and no description of such a feature in conjunction with the description of the figures.
No new matter should be entered.
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 contains the term “comprising” which is legal phraseology often used in patent claims and should be avoided in the abstract. 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).
The disclosure is objected to because of the following informalities: The disclosure uses the abbreviation “RET” (paragraph 15, 70) but does not first define the abbreviation. Additionally, Examiner notes that the term “vapor permeability” is defined in paragraph 47 but the cited paragraph makes no mention of RET as a way of measuring or expressing values of vapor permeability (the cited paragraph mentions a “TER” value or units expressed in g/m2/day or g/m2/h), even though RET is used in the claims to define ranges of permissible values for vapor permeability.
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 1-9, 11-20 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.
Regarding claim 1, the claim recites “a value of a characteristic of the first set of characteristics is different from a value of the corresponding characteristic of the second set of characteristics”. Firstly, there is insufficient antecedent basis for “the corresponding characteristic”. It is also unclear whether “a characteristic of the first set of characteristics” needs to be the same “characteristic” as “the corresponding characteristic of the second set of characteristics”, as just because something corresponds with something else does not necessarily mean they must be the exact same thing. See Britannica Dictionary definition of the term: “to be similar or equal to something; to have a direct relationship to or with something”. It is also unclear what the “corresponding characteristic” is corresponding to in the context of the claim. Later claims 3, 5, and 6 that specifically define the “characteristic of the first set of characteristics” and “corresponding characteristic of the second set of characteristics” as the same thing (either elasticity, waterproofness, or vapor permeability) add to the lack of clarity of claim 1, as it would appear that until the point where they are explicitly defined as the same thing, they do not necessarily need to be the same thing.
Regarding claim 2, the claim recites “the characteristic of the first set of characteristics and the corresponding characteristic of the second set of characteristics is an elasticity, a vapor permeability, or a waterproofness”. As described above regarding claim 1, it is unclear whether “a characteristic of the first set of characteristics” needs to be the same “characteristic” as “the corresponding characteristic of the second set of characteristics”, as just because something corresponds with something else does not necessarily mean they must be the exact same thing. Thus, it is unclear whether the claim requires BOTH “the characteristic of the first set of characteristics” and “the corresponding characteristic of the second set of characteristics” to be EITHER an elasticity, a vapor permeability, or a waterproofness, or if “the characteristic of the first set of characteristics” and “the corresponding characteristic” must INDIVIDUALLY be either an elasticity, a vapor permeability, or a waterproofness.
Regarding claim 3, the claim recites “the characteristic of the first set of characteristics and the corresponding characteristic of the second set of characteristics is an elasticity”. It is unclear whether this “an elasticity” should be referring to the same “an elasticity” as defined in claim 2 or if it can be different (e.g., located in a different area of the region).
Regarding claim 4, the claim recites “the value of the elasticity of the first membrane region ranges from 30% to 80%, and wherein the value of the elasticity of the second membrane region ranges from 1% to 30%”. Firstly, this reference to “the elasticity” compounds issues identified above for claims 2 and 3, as it is further unclear which “elasticity” this claim is referring to (the one from claim 2 or claim 3?). It is also unclear what it means for the elasticity to have a value which “ranges from 30% to 80” or “from 1% to 30%” or how that would be measured. Is this referring to an elongation at break? Or just referring to a range in which a material can stretch? Is it a property of the material composition? Or a property of the structure of the material/fabric? How is this measured? For example, a woven fabric and a knit fabric that are both made of cotton will each stretch to different degrees because of the structure of the fabric and how it is made. Fabrics can also have different amounts of stretch in different directions (i.e., even a woven fabric has some degree of stretch along the bias, other fabrics may be 2-way or 4-way stretch). Examiner notes that the specification does not provide additional context or explanation for how the elasticity is measured or how the percentage values are obtained. Para. 0046 does not assist in the determination, but rather adds to the lack of clarity regarding “elasticity” and percentages.
Regarding claim 5, the claim recites “the characteristic of the first set of characteristics and the corresponding characteristic of the second set of characteristics is a waterproofness”. It is unclear whether this “a waterproofness” should be referring to the same “a waterproofness” as defined in claim 2 or if it can be different (e.g., located in a different area of the region).
Regarding claim 6, the claim recites “the characteristic of the first set of characteristics and the corresponding characteristic of the second set of characteristics is a vapor permeability”. It is unclear whether this “a vapor permeability” should be referring to the same “a vapor permeability” as defined in claim 2 or if it can be different (e.g., located in a different area of the region). Further, the recitation of “the vapor permeability of the first membrane region” and “the vapor permeability of the second membrane region” compounds issues identified above for claim 2, as it is further unclear which “vapor permeability” these limitations are referring to (the one from claim 2 or the current one defined for claim 6?).
Regarding claim 12, the claim recites “the first membrane region is inserted into the second membrane region”. It is unclear what it means for the first membrane region to be “inserted into” the second membrane region, especially as claim 1 already defined that the second membrane region is “located in an area of the upper different from the first membrane region”.
Regarding claim 19, the claim recites “the value of the characteristic of the first set of characteristics and the value of the corresponding characteristic of the second set of characteristics are different from a value of the corresponding characteristic of the third set of characteristics”. Firstly, there is insufficient antecedent basis for “the corresponding characteristic of the third set of characteristics”. It is also unclear whether “a characteristic of the first set of characteristics” needs to be the same “characteristic” as “the corresponding characteristic of the second set of characteristics” and “the corresponding characteristic of the third set of characteristics”, as just because something corresponds with something else does not necessarily mean they must be the exact same thing. See Britannica Dictionary definition of the term: “to be similar or equal to something; to have a direct relationship to or with something”. It is also unclear what the “corresponding characteristic” is corresponding to in the context of the claim.
The dependent claims inherit the deficiency by nature of dependency.
Claim Rejections - 35 USC § 102
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 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) 1-3, 7-9, 12-14, 16, 20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hess (US 5797200).
Regarding claim 1, Hess discloses: An upper for an article of footwear comprising: a first membrane region (24) having a first set of characteristics; and a second membrane region (23) located in an area of the upper different from the first membrane region (see figure 1 showing regions 24 and 23 being located in different areas of the upper) and having a second set of characteristics, wherein a value of a characteristic of the first set of characteristics is different from a value of the corresponding characteristic of the second set of characteristics (“side wall 23 of the vamp section 22 is constructed of a substantially inelastic material—in this case, leather—while the top portion 24 of the vamp is constructed of an elastic material” column 3, lines 28-34).
Regarding claim 2, Hess discloses: The upper according to claim 1, wherein the characteristic of the first set of characteristics and the corresponding characteristic of the second set of characteristics is an elasticity (“side wall 23 of the vamp section 22 is constructed of a substantially inelastic material—in this case, leather—while the top portion 24 of the vamp is constructed of an elastic material” column 3, lines 28-34), a vapor permeability, or a waterproofness.
Regarding claim 3, Hess discloses: The upper according to claim 2, wherein the characteristic of the first set of characteristics and the corresponding characteristic of the second set of characteristics is an elasticity, wherein the value of the elasticity of the first membrane region is greater than the value of the elasticity of the second membrane region (“side wall 23 of the vamp section 22 is constructed of a substantially inelastic material—in this case, leather—while the top portion 24 of the vamp is constructed of an elastic material” column 3, lines 28-34; an elastic material has a greater elasticity than a substantially inelastic material), and wherein the first membrane region is located at an ankle region, a heel region, or a tongue region of the upper (see figure 1 showing the top portion 24 is located in a tongue region of the upper).
Regarding claim 7, Hess discloses: The upper according to claim 1, further comprising a connecting region (23a) disposed between the first membrane region and the second membrane region (see figure 3; “the elastic top portion 24 is stitched to edge 23a of the inelastic side wall 23” column 4, lines 14-15).
Regarding claim 8, Hess discloses: The upper according to claim 7, wherein the first membrane region comprises a first membrane (elastic material forming the top portion 24), the second membrane region comprises a second membrane (substantially inelastic material forming side wall 23), and the connecting region comprises a join assembling the first membrane and the second membrane (“the elastic top portion 24 is stitched to edge 23a of the inelastic side wall 23” column 4, lines 14-15).
Regarding claim 9, Hess discloses: The upper according to claim 8, wherein the join comprises at least one of an adhesive, a tape, a welded laser connection, a vibration connection, an infrared connection, a supersonic connection, a hot bar or hot pressing connection, or a seam with stiches (“the elastic top portion 24 is stitched to edge 23a of the inelastic side wall 23” column 4, lines 14-15).
Regarding claim 12, Hess discloses: The upper according to claim 1, wherein the first membrane region is inserted into the second membrane region (“the elastic top portion 24 is positioned within inner edge 23a of the inelastic portion 22 to cover and conform to the shape of an irregular area of the foot” column 3, lines 31-34).
Regarding claim 13, Hess discloses: The upper according to claim 12, wherein the first membrane region is U-shaped, rectangular shaped, trapezoid shaped, triangular shaped, or V-shaped (“U-shaped elastic top portion 24” column 4, line 20).
Regarding claim 14, Hess discloses: The upper according to claim 13, wherein the upper further comprises an outer layer at least partially overlapping the first membrane region and coupled to the second membrane region, and wherein the outer layer at least partially overlaps a connecting region disposed between the first membrane region and the second membrane region (see annotated figure 1 below showing the outer layer as claimed).
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Regarding claim 16, Hess discloses: The upper according to claim 1, wherein the upper further comprises a shoelace (38), wherein the shoelace is coupled to a plurality of eyestay elements (40), and wherein each eyestay element holds a loop of the shoelace at a respective point of fixation (“laces 38 are looped through eyes 40 positioned along the sides of the upper 20” column 3, lines 40-41; see figures 1 and 2).
Regarding claim 20, Hess discloses: A shoe (1) comprising the upper according to claim 1 (see 35 USC 102(a)(1) rejection of claim 1 above; see also figures 1-2 which show the full shoe 1).
Claim(s) 4 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hess (US 5797200) and evidenced by Spoonflower (“Learn about Our Knit Fabrics” article accessed from https://support.spoonflower.com/hc/en-us/articles/204468750-Learn-about-Our-Knit-Fabrics).
Regarding claim 4 as best understood by Examiner, Hess discloses: The upper according to claim 3, wherein the value of the elasticity of the first membrane region ranges from 30% to 80% (“the elastic material is approximately 85% polyester and 15% Lycra®” column 4, lines 7-8; as evidenced by Spoonflower, which states that a material that is 88% polyester and 12% Lycra® (i.e., approximately 85% polyester and 15% Lycra® as described in Hess) has at least 50% horizontal stretch, as shown in the chart copied below; this measurement of stretch is understood to be the “elasticity” as claimed insofar as can be understood by the Examiner), and wherein the value of the elasticity of the second membrane region ranges from 1% to 30% (“side wall 23 of the vamp section 22 is constructed of a substantially inelastic material—in this case, leather” column 2, lines 28-34; it is understood that a substantially inelastic material has at least some degree of stretch/elasticity that is at least 1% insofar as can be understood by the Examiner).
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Chart from Spoonflower showing that a material with 88% polyester and 12% Lycra® has at least 50% horizontal stretch
Claim(s) 1-2, 5, 7-9, 11-20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Ruben (US 2008/0016717).
Regarding claim 1, Ruben discloses: An upper for an article of footwear comprising: a first membrane region (16) having a first set of characteristics; and a second membrane region (vamp 13) located in an area of the upper different from the first membrane region (see figure 1a) and having a second set of characteristics, wherein a value of a characteristic of the first set of characteristics is different from a value of the corresponding characteristic of the second set of characteristics (“the reinforcement 16 is made of waterproof and abrasion-proof material, in any case more resistant than the material of the upper 10. It can be made, for example, of a laminated PU layer/non-woven layer such as PU/PVC, non-woven polyester” paragraph 65, vamp 13 is part of upper, para. 0036).
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Regarding claim 2, Ruben discloses: The upper according to claim 1, wherein the characteristic of the first set of characteristics and the corresponding characteristic of the second set of characteristics is an elasticity, a vapor permeability, or a waterproofness (“the reinforcement 16 is made of waterproof and abrasion-proof material, in any case more resistant than the material of the upper 10. It can be made, for example, of a laminated PU layer/non-woven layer such as PU/PVC, non-woven polyester” paragraph 65).
Regarding claim 5, Ruben discloses: The upper according to claim 2, wherein the characteristic of the first set of characteristics and the corresponding characteristic of the second set of characteristics is a waterproofness, wherein the value of the waterproofness of the first membrane region is greater than the value of the waterproofness of the second membrane region (“the reinforcement 16 is made of waterproof and abrasion-proof material, in any case more resistant than the material of the upper 10. It can be made, for example, of a laminated PU layer/non-woven layer such as PU/PVC, non-woven polyester” paragraph 65)., and wherein the first membrane region is located closer to a lower surface of the upper than the second membrane region of the upper, the lower surface of the upper being configured to form a bite line with a sole when coupled thereto (see figure 1a and figure 2, showing the region 16 is located closer to the lower surface of the upper than the region 13).
Regarding claim 7, Ruben discloses: The upper according to claim 1, further comprising a connecting region disposed between the first membrane region and the second membrane region (see figure 1a annotated below).
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Regarding claim 8, Ruben discloses: The upper according to claim 7, wherein the first membrane region comprises a first membrane (“laminated PU layer/non-woven layer” paragraph 65), the second membrane region comprises a second membrane (“a second layer 13b made of a breathable-waterproof membrane such as a PU film” paragraph 41), and the connecting region comprises a join assembling the first membrane and the second membrane (see figure 1a; “reinforcement 16 is fixed to the upper 10 by a seam 17” paragraph 66 “each of the seams 16c, 17 is covered by a sealing strip 18” paragraph 67).
Regarding claim 9, Ruben discloses: The upper according to claim 8, wherein the join comprises at least one of an adhesive, a tape, a welded laser connection, a vibration connection, an infrared connection, a supersonic connection, a hot bar or hot pressing connection, or a seam with stiches (see figure 1a; “reinforcement 16 is fixed to the upper 10 by a seam 17” paragraph 66 “each of the seams 16c, 17 is covered by a sealing strip 18” paragraph 67).
Regarding claim 11, Ruben discloses: The upper according to claim 1, wherein the first membrane region or the second membrane region includes a laminated structure (“vamp 13 […] made of breathable-waterproof material constituted of three laminated layers” paragraph 39) having a carrier (13c) and a membrane layer (13b), wherein the carrier is formed from at least one of an engineered mesh, a weft or warp knitted fabric, or a woven fabric (a third layer 13c made of a mesh of polyester or polyamide” paragraphs 39-42).
Regarding claim 19, Ruben discloses: The upper according to claim 1, further comprising a third membrane region (18) located in an area of the upper different from the first and second membrane regions (see annotated figure 1a below) and having a third set of characteristics, wherein the value of the characteristic of the first set of characteristics and the value of the corresponding characteristic of the second set of characteristics are different from a value of the corresponding characteristic of the third set of characteristics (the first membrane region is made of “a laminated PU layer/non-woven layer such as PU/PVC, non-woven polyester” paragraph 65; the second membrane region is made of “three laminated layers […] a first layer 13a made of extensible, polyester-, polyamide-based repellent-treated material […] a second layer 13b made of a breathable-waterproof membrane such as a PU film […] a third layer 13c made of a mesh of polyester or polyamide” paragraphs 39-42; the third membrane region is made of “62.3% polyurethane, 27.3% polyamide, and 10.4% spandex” paragraph 69; thus, each of the three membrane regions has a different material composition).
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Regarding claim 20, Ruben discloses: A shoe (1) comprising the upper according to claim 1 (see 35 USC 102(a)(1) rejection of claim 1 above).
For claims 12-15, the first membrane region is redefined as an area of the vamp 13 and the second membrane region is redefined as an area of the reinforcement 16. The boundaries of the first membrane region and second membrane region have been redefined as follows:
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Regarding claim 12, Ruben discloses: The upper according to claim 1, wherein the first membrane region is inserted into the second membrane region (the first membrane region has been inserted into the second membrane region insofar as claimed or described, as the first membrane region is attached to an interior side of the second membrane region).
Regarding claim 13, Ruben discloses: The upper according to claim 12, wherein the first membrane region is U-shaped, rectangular shaped, trapezoid shaped, triangular shaped, or V-shaped (see annotated figure 1a provided preceding the 35 USC 102(a)(1) rejection of claim 12; examiner notes that while only one side of the shoe is shown in the figure, the first membrane region would extend on the other side that is not shown in a similar way to the side as shown, making the overall shape of the first membrane region “U-shaped” insofar as claimed or described).
Regarding claim 14, Ruben discloses: The upper according to claim 13, wherein the upper further comprises an outer layer (18) at least partially overlapping the first membrane region and coupled to the second membrane region (“each of the seams 16c, 17 is covered by a sealing strip 18” paragraph 67), and wherein the outer layer at least partially overlaps a connecting region (see figure 3 annotated below) disposed between the first membrane region and the second membrane region.
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Regarding claim 15, Ruben discloses: The upper according to claim 13, wherein the upper further comprises an inner layer (19) at least partially overlapped by the first membrane region and coupled to the second membrane region (see figure 3; “a lining 19 is fixed to the vamp 13 in the area of the vamp’s upper end” paragraph 56), and wherein the inner layer is at least partially overlapped by a connection region disposed between the first membrane region and the second membrane region (see figure 3 annotated with the 35 USC 102(a)(1) rejection of claim 14 above).
For claims 16-18, the boundaries of the first membrane region, second membrane region, and connecting region have been redefined as shown in the following annotated figure 1:
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Regarding claim 16, Ruben discloses: The upper according to claim 1, wherein the upper further comprises a shoelace (26), wherein the shoelace is coupled to a plurality of eyestay elements (25), and wherein each eyestay element holds a loop of the shoelace at a respective point of fixation (“keepers 25 adapted to receive a tightening lace 26 are fixed by stitching and/or gluing on the vamp 13 along the edges of the opening 14” paragraph 54; see figure 1a annotated above).
Regarding claim 17, Ruben discloses: The upper according to claim 16, wherein the plurality of eyestay elements are coupled to a connecting region (see figure 1 annotated above preceding the 35 USC 102(a)(1) rejection of claim 16) disposed between the first membrane region and the second membrane region.
Regarding claim 18, Ruben discloses: The upper according to claim 16, wherein the plurality of eyestay elements are coupled to an edge of an outer layer of the upper (30), the outer layer being attached to the second membrane region (“these keepers 24, constituted by folded straps, are fixed by stitching and/or gluing on the vamp 13, and the assembly is reinforced by means of a strip 30 made of waterproof material” paragraph 54; see figure 1 above preceding the 35 USC 102(a)(1) rejection of claim 16).
Claim(s) 1-2, 6 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Jessiman (US 2011/0179677).
Regarding claim 1, Jessiman discloses: An upper for an article of footwear comprising: a first membrane region (10) having a first set of characteristics; and a second membrane region (20) located in an area of the upper different from the first membrane region (see figure 1) and having a second set of characteristics, wherein a value of a characteristic of the first set of characteristics is different from a value of the corresponding characteristic of the second set of characteristics (“the laminate of the superior compartment has a moisture vapor transmission rate greater than 1100 g/m2/24 hours and the laminate of the inferior compartment has a moisture vapor transmission rate greater than 2200 g/m2/24 hours” paragraph 12).
Regarding claim 2, Jessiman discloses: The upper according to claim 1, wherein the characteristic of the first set of characteristics and the corresponding characteristic of the second set of characteristics is an elasticity, a vapor permeability (“the laminate of the superior compartment has a moisture vapor transmission rate greater than 1100 g/m2/24 hours and the laminate of the inferior compartment has a moisture vapor transmission rate greater than 2200 g/m2/24 hours” paragraph 12), or a waterproofness.
Regarding claim 6, Jessiman discloses: The upper according to claim 2, wherein the characteristic of the first set of characteristics and the corresponding characteristic of the second set of characteristics is a vapor permeability (“the laminate of the superior compartment has a moisture vapor transmission rate greater than 1100 g/m2/24 hours and the laminate of the inferior compartment has a moisture vapor transmission rate greater than 2200 g/m2/24 hours” paragraph 12), and wherein the value of the vapor permeability of the first membrane region ranges from 3 RET to 15 RET (“the film includes ePTFE having a microstructure characterized by nodes interconnected by fibrils, wherein the pores of the porous film are sufficiently tight so as to provide liquidproofness and sufficiently open to provide properties such as moisture vapor transmission” paragraph 22; since Applicant indicated ePTFE as a material having the claimed vapor permeability in RET in paragraph 71 of the instant specification, it is understood that the vapor permeability in RET of the film in Jessiman is also in the claimed range because it is also made of ePTFE), and wherein the value of the vapor permeability of the second membrane region ranges from 3 RET to 15 RET (“the film of the inferior compartment utilizes the same material described above for the superior compartment” paragraph 29; the materials of the superior compartment were described as follows, “the film includes ePTFE having a microstructure characterized by nodes interconnected by fibrils, wherein the pores of the porous film are sufficiently tight so as to provide liquidproofness and sufficiently open to provide properties such as moisture vapor transmission” paragraph 22; since Applicant indicated ePTFE as a material having the claimed vapor permeability in RET in paragraph 71 of the instant specification, it is understood that the vapor permeability in RET of the film in Jessiman is also in the claimed range because it is also made of ePTFE).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Lee (US 2019/0380441) discloses a shoe upper with a coating applied to selected areas. Bacino (US 2017/0042280) discloses a shoe upper that is waterproof and breathable.
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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Clinton Ostrup can be reached at 571-272-5559. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BRIANNA T. DUCKWORTH/Examiner, Art Unit 3732
/PATRICK J. LYNCH/Primary Examiner, Art Unit 3732
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