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
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.
The applicant is respectfully advised that in examining a pending application, the claims are interpreted as broadly as their terms reasonably convey. In re American Academy of Science Tech Center, 70 USPQ2d. 1827, 1834 (Fed. Cir. May 13, 2004). MPEP § 2111.01.
Claims 52-53 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Chung (WO02/49471A2).
Regarding Claim 52, Chung discloses in Figure1, an article of footwear 1 for warm-up and active recovery, the article of footwear 1 comprising: a sole 2; and an upper (covering cloth 3) having a far infrared radiation heating element (thermal filament 4 Pg 3 ,lines 1-5), wherein the far infrared radiation heating element 4 is configured to apply a therapeutic regimen (simulating blood circulation Pg 2 , lines 5-10).
Regarding Claim 53, Chung discloses the article of footwear of claim 52, wherein the far infrared radiation heating 4 element comprises one of carbon fiber, graphene, and ceramics (the filament is coated with a bio ceramic Pg 3, lines 13-15).
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
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 applicant is respectfully advised that in examining a pending application, the claims are interpreted as broadly as their terms reasonably convey. In re American Academy of Science Tech Center, 70 USPQ2d. 1827, 1834 (Fed. Cir. May 13, 2004). MPEP § 2111.01.
Claims 54-58, 106-107 and 110-117 are rejected under 35 U.S.C. 103 as being unpatentable over Chung (WO02/49471) in view of Oumnia (FR3022122A1).
Regarding Claims 54-58, 106 and 114, Chung discloses a FIR having a body disposed in the upper 3 and sole 2 having two terminals (the receptacle 6 with two male plug members shown not labelled Figure 1) to pass current through the body 4. However Chung does not disclose 54 the article of footwear 1 of claim 52, further comprising cold elements coupled to the sole wherein the cold elements and the far infrared radiation heating element are configured to operate sequentially to apply the therapeutic regimen wherein the cold elements and the far infrared radiation heating element are configured to not operate simultaneously or wherein the cold elements comprise thermoelectric coolers or wherein the cold elements comprise contact area wherein the thermoelectric cooler assembly is disposed in the sole.
Oumnia discloses in Figures 1-3, thermoelectric coolers having contact areas in the sole that operates sequentially with a heating element to provide cooling to the wearer of the shoe (Para 0015).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of filing to incorporate a TEC with contact areas into the footwear of Chung as claimed to provide temperature regulation using heating and cooling.
Regarding Claim 107, Chung discloses the article of footwear of claim 52, wherein the far infrared radiation heating 4 element comprises one of carbon fiber, graphene, and ceramics (the filament is coated with a bio ceramic Pg 3, lines 13-15).
Regarding Claim 110, Chung discloses the article of footwear of claim 106, wherein the far infrared radiation heating system is disposed in the sole (the filament 4 is embedded in the insole 2 Pg 2, lines 26-30).
Regarding Claim 112, Chung discloses in Figure 1, the article of footwear of claim 106, further comprising an upper 3, wherein the far infrared radiation heating system 4 is disposed in the upper 3.
Regarding Claim 113 and 117, Chung as modified by Oumnia does not explicitly disclose the article of footwear of claim 106 and 114 respectively, further comprising: an additional far infrared radiation heating system; and an additional thermoelectric cooler assembly, wherein the far infrared radiation heating system, the additional far infrared radiation heating system, the thermoelectric cooler assembly, and the additional thermoelectric cooler assembly are disposed in the sole or systems of the upper comprises three or more far infrared heating systems disposed on a medial side of the upper and three or more far infrared heating systems disposed on a lateral side of the upper.
It would have been obvious to one of ordinary skill in the art at the time of filing to have multiple IR and TEC units in the sole to heat and cool multiple locations of the foot since it has been held that mere duplication of essential working parts of a device involves only routine skill in the art. St. Regis Paper Co. v. Bemis Co., 193 USPQ 8.
Regarding Claim 115, Chung discloses in Figure 1 the article of footwear of claim 114, wherein the far infrared heating system 4 of the sole 2 is disposed in a forefoot region of the sole 2.
Regarding Claim 116, Chung does not explicitly disclose in Figure 1, the article of footwear of claim 114, wherein the one or more far infrared heating systems (filaments 4) of the upper 3 extend from a medial side to a lateral side of the upper 3.
It would have been obvious to one of ordinary skill in the art to have the filament extend along an area including the medial and lateral portions of the upper, because a person of ordinary skill would have had good reason to pursue the known option(s) of having the filament cover a majority of the area of the upper including the medial and lateral regions to apply more heat thoroughly to the entire upper which is considered to be within his or her technical grasp. This leads to the anticipated success of uniformly applying thermal heat and it is determined that enveloping both regions of the upper is not of innovation, but of ordinary skill and common sense. See KSR International Co. v. Teleflex Inc., 82 USPQ2d 1385 (2007).
Claims 108-109 are rejected under 35 U.S.C. 103 as being unpatentable over Chung (WO02/49471) and Oumnia as applied to Claim 106 and further in view of Liu (CN114128955A).
Regarding Claims 108-109, Chung does not disclose the article of footwear of claim 106, wherein the body is formed f a mesh wherein the mesh comprises carbon fiber strands.
Liu discloses in Figures 3-5, footwear having a FIR emitter made from a mesh (mesh of grid cloth 5) of carbon fiber (his coating on the grid cloth 5 and the grid cloth 5 with emitting far infrared light wave material can be biological carbon, carbon fiber product and other nanometer far infrared material).
It would have been obvious to one of ordinary skill in the art to form the filament as a cloth mesh comprising carbon fiber strands. All the claimed elements in Chung and Liu were known in the prior art and one skilled in the art could have combined the mesh carbon fiber FIR emitting strands with the shoe wear of Chung as claimed with no change in their respective functions, and the combination would have yielded the predictable result providing FIR therapeutic heat to one of ordinary skill in the art at the time of filing. See KSR International Co. v. Teleflex Inc., 82 USPQ2d 1385 (2007).
Claim 118 is rejected under 35 U.S.C. 103 as being unpatentable over Chung (WO02/49471A) and Oumnia (FR3022122A1) as applied to claim 114 above, and further in view of Ko (KR 101764715B1).
Chung as modified by Oumnia does not disclose an air intake configured to draw in air to flow across a portion of the thermoelectric cooling system of the sole.
Ko discloses in Figure 2 a ventilation hole 300 for allowing air flow across a heating cooling portion (Para 0047).
It would have been obvious to one of ordinary skill in the art to incorporate air intakes into the footwear. All the claimed elements in Chung and Ko were known in the prior art and one skilled in the art could have combined the intake with the footwear as claimed with no change in their respective functions, and the combination would have yielded the predictable result providing convective cooling using the air intake to one of ordinary skill in the art at the time of filing. See KSR International Co. v. Teleflex Inc., 82 USPQ2d 1385 (2007).
Response to Arguments
Applicant’s arguments, with respect to the rejections of the claims under 102(a)(1) have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Chung (WO 02/49471).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ROBERT J MAY whose telephone number is (571)272-5919. The examiner can normally be reached M-F 10AM-3:30pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jong-Suk (James) Lee can be reached at 571-272-7044. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ROBERT J MAY/Primary Examiner, Art Unit 2875
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