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 .
Response to Amendment
The amendments filed on 06/23/2026 have been entered. Claims 1-20 remain pending in the application, with Claims 14 and 20 being newly amended.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-9, 11, 13-17, and 19 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Cucinotta (US 1088328).
Regarding Claim 1, Cucinotta teaches an article of footwear (see fig. 1) defining a forefoot region (see annotated Fig.), a midfoot region (see annotated Fig.), a heel region (see annotated Fig.), a lateral side (see annotated Fig.), and a medial side (see annotated Fig.) (Annotated figs. 1 and 3 show the forefoot, midfoot, and heel regions and the lateral and medial sides), the article of footwear comprising: an upper (A); and a sole structure (B, C, 8, 10) coupled to the upper and configured to engage with a ground surface (fig. 1 shows the sole structure (B, C, 8, 10) coupled to the upper and configured to engage with the ground), the sole structure including: a cushioning member (8, 10), and a unitary plate (B, C) (Examiner notes that the plate (B, C) is considered to be unitary as it is fastened into a single piece, as shown in fig. 1) including an upper plate (B) and a lower plate (C) that extends from the upper plate (fig. 1 shows the lower plate (C) extending from the upper plate (B)), the lower plate being coupled to the upper plate at each of a front coupling point (see annotated Fig.) and a rear coupling point (see annotated Fig.), such that a front spacing (D) is defined between the front coupling point and the rear coupling point (Annotated fig. 1 shows the front spacing (D) defined between the front and rear coupling points).
Regarding Claim 2, Cucinotta teaches all of the limitations of the article of footwear of Claim 1, as discussed in the rejections above. Cucinotta further teaches wherein the lower plate (C) also extends away from the upper (A) at the rear coupling point (see annotated Fig.) and toward the heel region such that a rear spacing (E) is defined opposite the front spacing (D) at the rear coupling point (fig. 1 shows the lower plate (C) extending away from the upper (A) at the rear coupling point and toward the heel region to define a rear spacing (E) opposite the front spacing (D)).
Regarding Claim 3, Cucinotta teaches all of the limitations of the article of footwear of Claim 2, as discussed in the rejections above. Cucinotta further teaches wherein the front coupling point (see annotated Fig.) is positioned in the forefoot region (see annotated Fig.) (annotated fig. 1 shows the front coupling point in the forefoot region).
Regarding Claim 4, Cucinotta teaches all of the limitations of the article of footwear of Claim 2, as discussed in the rejections above. Cucinotta further teaches wherein the front spacing (D) defines a front spacing volume and the rear spacing (E) defines a rear spacing volume that is different than the front spacing volume (fig. 1 shows the rear spacing volume of the rear spacing (E) being different than the front spacing volume of the front spacing (D)).
Regarding Claim 5, Cucinotta teaches all of the limitations of the article of footwear of Claim 2, as discussed in the rejections above. Cucinotta further teaches wherein the front spacing (D) has a first longitudinal length (see annotated Fig.) defined as a straight line distance between the rear coupling point (see annotated Fig.) and the front coupling point (see annotated Fig.) and the rear spacing has a second longitudinal length (see annotated Fig.) defined as a straight line distance between the rear coupling point and a terminal end of the lower plate (annotated fig. 1 shows the front and rear spacings having respective first and second longitudinal lengths that extend between the points as claimed).
Regarding Claim 6, Cucinotta teaches all of the limitations of the article of Claim 5, as discussed in the rejections above. Cucinotta further teaches wherein the first longitudinal length is greater than the second longitudinal length (Annotated fig. 1 shows the first longitudinal length being greater than the second longitudinal length).
Regarding Claim 7, Cucinotta teaches all of the limitations of the article of footwear of Claim 5, as discussed in the rejections above. Cucinotta further teaches wherein the front spacing (D) has a curved length (see annotated Fig.) defined as a curved line that follows a midpoint between the upper plate and the lower plate when viewed from the lateral side (Annotated fig. 1 shows the curved length of the front spacing (D) that extends as defined by the claim).
Regarding Claim 8, Cucinotta teaches all of the limitations of the article of Claim 7 of footwear, as discussed in the rejections above. Cucinotta further teaches wherein the front spacing defines a gap height measured from the upper plate to the lower plate when viewed from the lateral side, the gap height increasing moving from the rear coupling point toward the front coupling point and the gap height increasing moving from the front coupling point toward the rear coupling point (fig. 1 shows the front spacing (D) having a gap height increasing as it moves from the rear coupling point towards the front coupling point and vice versa).
Regarding Claim 9, Cucinotta teaches all of the limitations of the article of footwear of Claim 8, as discussed in the rejections above. Cucinotta further teaches wherein the lower plate includes a center section (see annotated Fig.) between the front coupling point and the rear coupling point and the gap height is at a maximum at the center section (Annotated fig. 1 shows the gap height being at a maximum at the center section; ll. 47-50 teaches “the soles B and C are spread apart from each other forming a transverse opening D, which is deeper in the middle than at the ends”).
Regarding Claim 11, Cucinotta teaches all of the limitations of the article of footwear of Claim 1, as discussed in the rejections above. Cucinotta further teaches wherein the lower plate (C) extends from the lateral side to the medial side (fig. 2 shows the lower plate (C) extending from the lateral to the medial side).
Regarding Claim 13, Cucinotta teaches all of the limitations of the article of footwear of Claim 1, as discussed in the rejections above. Cucinotta further teaches wherein the rear coupling point (see annotated Fig.) is positioned in the midfoot region and the front coupling point (see annotated Fig.) is positioned in the forefoot region (Annotated fig. 1 shows the rear coupling point in the midfoot region and the front coupling point in the forefoot region).
Regarding Claim 14, Cucinotta teaches an article of footwear (see fig. 1) defining a forefoot region (see annotated Fig.), a midfoot region (see annotated Fig.), a heel region (see annotated Fig.), a lateral side (see annotated Fig.), and a medial side (see annotated Fig.) (Annotated figs. 1 and 3 show the forefoot, midfoot, and heel regions and the lateral and medial sides), the article of footwear comprising: an upper (A); and a sole structure (B, C, 8, 10) coupled to the upper and configured to engage with a ground surface (fig. 1 shows the sole structure (B, C, 8, 10) coupled to the upper and configured to engage with the ground), the sole structure including a unitary plate (B, C) (Examiner notes that the plate (B, C) is considered to be unitary as it is fastened into a single piece, as shown in fig. 1) including an upper plate (B) and a lower plate (C) that is coupled to the upper plate at a midfoot coupling point (see annotated Fig.) positioned in the midfoot region and a forefoot coupling point (see annotated Fig.) that is positioned in the forefoot region (annotated fig. 1 shows the upper (B) and lower (C) plates being coupled at a midfoot and a forefoot coupling point positioned in the midfoot and forefoot regions, respectively), the lower plate being spaced from the upper plate between the midfoot coupling point and the forefoot coupling point (annotated fig. 1 shows the lower plate (C) being spaced from the upper plate (B) between the midfoot and forefoot coupling points).
Regarding Claim 15, Cucinotta teaches all of the limitations of the article of footwear of Claim 14, as discussed in the rejections above. Cucinotta further teaches wherein a gap height is defined between the upper plate and the lower plate when viewed from the lateral side (fig. 1 shows the gap height between the upper (B) and lower (C) plates when viewed from the lateral side), the gap height varying in magnitude between the midfoot coupling point and the forefoot coupling point (fig. 1 shows the gap height varying in magnitude between the midfoot and forefoot coupling points).
Regarding Claim 16, Cucinotta teaches all of the limitations of the article of footwear of Claim 15, as discussed in the rejections above. Cucinotta further teaches wherein the gap height is at a maximum at a center section of the lower plate that is between the midfoot coupling point and the forefoot coupling point (Annotated fig. 1 shows the gap height being at a maximum at the center section between the midfoot and forefoot coupling points; ll. 47-50 teaches “the soles B and C are spread apart from each other forming a transverse opening D, which is deeper in the middle than at the ends”).
Regarding Claim 17, Cucinotta teaches all of the limitations of the article of footwear of Claim 15, as discussed in the rejections above. Cucinotta further teaches a top portion (see annotated Fig.) coupled to the upper plate, the top portion positioned between the upper plate and the upper so that the sole structure is coupled to the upper by the top portion (annotated fig. 3 shows the top portion coupled to the upper plate (B), the top portion being positioned between the upper plate and the upper so that top portion couples the sole structure to the upper).
Regarding Claim 19, Cucinotta teaches all of the limitations of the article of footwear of Claim 18, as discussed in the rejections above. Cucinotta further teaches wherein the sole structure further includes a cushioning member (8, 10) that is coupled to each of the upper plate (B) and the lower plate (C) (fig. 1 shows the cushioning member (8, 10) being coupled to the upper (B) and lower (C) plates).
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Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 10, 18, and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Cucinotta (US 1088328) in view of Hetter (US 1821834).
Regarding Claim 10, Cucinotta teaches all of the limitations of the article of footwear of Claim 9, as discussed in the rejections above.
Cucinotta does not teach wherein a ground engaging member is provided on the center section of the lower plate, the ground engaging member configured to increase traction with the ground surface.
Attention is drawn to Hetter which teaches an analogous article of footwear. Hetter teaches an article of footwear (10) defining a forefoot region, a midfoot region, a heel region, a lateral side, and a medial side (figs. 1 and 2 show the footwear defining a forefoot, midfoot, and heel region and a lateral and medial side), the article of footwear comprising: an upper (11); and a sole structure (ref #s 12-20) coupled to the upper and configured to engage with a ground surface (fig. 1 shows the sole structure coupled to the upper (11) and being configured to engage with the ground surface), the sole structure including: a cushioning member (14, 15, 16), and a unitary plate (12, 13). Hetter further teaches wherein a ground engaging member (20) is provided on the center section of the plate, the ground engaging member configured to increase traction with the ground surface (fig. 1 shows the ground engaging member (20) being provided on the center section of the plate (12, 13), the ground engaging member (20) clearly being shaped such that it is configured to increase traction with the ground surface).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Cucinotta to include the teachings of Hetter such that a ground engaging member is provided on the center section of the lower plate, the ground engaging member configured to increase traction with the ground surface so as to allow the wearer to walk more comfortably on uneven or slippery ground.
Regarding Claim 18, Cucinotta teaches all of the limitations of the article of footwear of Claim 17, as discussed in the rejections above.
Cucinotta does not teach wherein the sole structure further comprises a ground-engaging member that is coupled to the lower plate.
Attention is drawn to Hetter which teaches an analogous article of footwear. Hetter teaches an article of footwear (10) defining a forefoot region, a midfoot region, a heel region, a lateral side, and a medial side (figs. 1 and 2 show the footwear defining a forefoot, midfoot, and heel region and a lateral and medial side), the article of footwear comprising: an upper (11); and a sole structure (ref #s 12-20) coupled to the upper and configured to engage with a ground surface (fig. 1 shows the sole structure coupled to the upper (11) and being configured to engage with the ground surface), the sole structure including: a cushioning member (14, 15, 16), and a unitary plate (12, 13). Hetter further teaches wherein the sole structure further comprises a ground-engaging member (20) that is coupled to the lower plate (fig. 1 shows the ground engaging member (20) being coupled to the lower plate (12, 13)).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Cucinotta to include the teachings of Hetter such that the sole structure further comprises a ground-engaging member that is coupled to the lower plate so as to allow the wearer to walk more comfortably on uneven or slippery ground.
Regarding Claim 20, Cucinotta teaches an article of footwear defining a forefoot region (see annotated Fig.), a midfoot region (see annotated Fig.), a heel region (see annotated Fig.), a lateral side (see annotated Fig.), and a medial side (see annotated Fig.) (Annotated figs. 1 and 3 show the forefoot, midfoot, and heel regions and the lateral and medial sides), the article of footwear comprising: an upper (A); a top portion (see annotated Fig.) coupled to the upper (annotated fig. 3 shows the top portion coupled to the upper (A)); and a sole structure (B, C, D) coupled to the upper and configured to engage with a ground surface (fig. 1 shows the sole structure (B, C, D) coupled to the upper and configured to engage with the ground), the sole structure including: a unitary plate (B, C) (Examiner notes that the plate (B, C) is considered to be unitary as it is fastened into a single piece, as shown in fig. 1) including an upper plate (B) and a lower plate (C) that extends from the upper plate (fig. 1 shows the lower plate (C) extending from the upper plate (C)), the lower plate being coupled to the upper plate at each of a front coupling point (see annotated Fig.) and a rear coupling point (see annotated Fig.), such that a front spacing (D) is defined between the front coupling point and the rear coupling point (annotated fig. 1 shows the lower (C) and upper (B) plates being coupled at a front and a rear coupling point to define a front spacing (D)), a cushioning member (8, 10) coupled to each of the upper plate and the lower plate (fig. 1 shows the cushioning member (8, 10) coupled to the upper (B) and lower (C) plates),
Cucinotta does not teach a ground-engaging member that is coupled to the lower plate.
Attention is drawn to Hetter which teaches an analogous article of footwear. Hetter teaches an article of footwear (10) defining a forefoot region, a midfoot region, a heel region, a lateral side, and a medial side (figs. 1 and 2 show the footwear defining a forefoot, midfoot, and heel region and a lateral and medial side), the article of footwear comprising: an upper (11); and a sole structure (ref #s 12-20) coupled to the upper and configured to engage with a ground surface (fig. 1 shows the sole structure coupled to the upper (11) and being configured to engage with the ground surface), the sole structure including: a cushioning member (14, 15, 16), and a unitary plate (12, 13). Hetter further teaches wherein the sole structure further comprises a ground-engaging member (20) that is coupled to the lower plate (fig. 1 shows the ground engaging member (20) being coupled to the lower plate (12, 13)).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Cucinotta to include the teachings of Hetter such that the sole structure further comprises a ground-engaging member that is coupled to the lower plate so as to allow the wearer to walk more comfortably on uneven or slippery ground.
Claim(s) 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Cucinotta (US 1088328) in view of Taylor et al. (US 2012/0317841).
Regarding Claim 12, Cucinotta teaches all of the limitations of the article of footwear of Claim 1, as discussed in the rejections above.
Cucinotta does not teach wherein the unitary plate comprises a thermoplastic elastomer.
Attention is drawn to Taylor et al., which is an analogous article of footwear. Taylor et al. teaches an article of footwear (100) defining a forefoot region, a midfoot region, a heel region, a lateral side, and a medial side (fig. 1 shows the footwear having a forefoot, midfoot, and heel region and a lateral and medial side), the article of footwear comprising: an upper (107); and a sole structure (101, 103, 105) coupled to the upper and configured to engage with a ground surface (fig. 1 shows the sole structure (101, 103, 105) coupled to the upper (107) and configured to engage with the ground surface), the sole structure including: a cushioning member (103), and a unitary plate (101) (fig. 1 shows the sole structure including a cushioning member (103) and unitary plate (101)). Taylor et al. further teaches wherein the unitary plate (101) comprises a thermoplastic elastomer (paragraph [0029] teaches “The outsole 101 of the inventive athletic shoe 100 can be made of rubber such as thermoplastic elastomers (TPE) or thermoplastic rubbers.”).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Cucinotta to include the teachings of Taylor et al. such that the unitary plate comprises a thermoplastic elastomer so as to ensure foot cushioning for the user while using the shoe (paragraph [0029], “For example, the outsole 101 can have a harder lower tread 125 surface and a softer more shock absorptive upper section to provide some foot cushioning while running.”), especially as Cucinotta teaches the outsole comprising rubber, but not a thermoplastic elastomer rubber (ll. 38-40 teaches “this outer sole C is preferably made of one layer of leather 4 and one of rubber 5 cemented together).
Response to Arguments
The Terminal Disclaimer filed 06/23/2026 has been accepted. As such, the Non-statutory double patenting rejections have been withdrawn.
Applicant's arguments filed 06/23/2026 have been fully considered but they are not persuasive.
Regarding independent Claims 1, 14, and 20, Applicant submits that Cucinotta does not teach a unitary plate and therein does not teach all of the limitations of the claims as indicated. Applicant points to the rejection of Claim 1 which states “the plate (B, C) is considered to be unitary as it is fastened into a single piece,” which Applicant takes to be an admission that the upper and lower plate are separate structures, which is antithetical to being a unitary plate. Examiner disagrees. Examiner notes that the term "unitary" is very broad and merely means "Having the nature of a unit; whole." (Defn. No. 2 of "American Heritage® Dictionary of the English Language, Fifth Edition" entry via TheFreeDictionary.com). Because the plates are connected to form a unit, and made whole, the upper and lower plates are clearly unitary. Further, the instant applicant recites in the claims that the lower plate is “coupled to the upper plate at each of a front coupling point and a rear coupling point,” clearly indicating that two structures that are connected to each other can be considered as a whole a unitary structure, as is presently the case in the instant specification and as taught by Cucinotta. Examiner respectfully suggests amending the claims to specifically recite the structure that makes the upper and lower plates a unitary plate, if the intended meaning is narrower than what is generally known. For at least these reasons, the rejections over Cucinotta are maintained, and Claims 1 and 14 remain rejected under 35 U.S.C. 102 and Claim 20 remains rejected under 35 U.S.C. 103.
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 HALEY A SMITH whose telephone number is (571)272-6597. The examiner can normally be reached Monday - Thursday 7:00 am - 5:00 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Khoa Huynh can be reached at (571)272-4888. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/HALEY A SMITH/Primary Examiner, Art Unit 3732
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