DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Election/Restrictions
Applicant’s election without traverse of Species 1 in the reply filed on December 18, 2025 is acknowledged.
Claim Objections
1. Claim 9 is objected to because of the following informalities: Claim 9 recites “of the of the” which appears to be an error and should read “of the”. Appropriate correction is required.
2. Claim 20 is objected to because of the following informalities: Claim 20 recites “acclaim” which appears to be an error and should read “claim”. Appropriate correction is required.
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.
3. Claim(s) 1-10 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Podhajny (US 2015/0216256).
Regarding Claim 1, Podhajny discloses an article of footwear comprising: an integrally-knitted footwear upper (portion 600,602,604 of 131) and sole (portion 610,612 of 131)(as seen in Fig.6; para.50), the sole including one or more interlooped yarns (1301,1302/901,902,903,904) comprising a first material (para.43-45), the first material including a thermoplastic material (para.45, 68-70 & 88; Fig.13).
Regarding Claim 2, Podhajny discloses an article of footwear of claim 1, wherein a ground contact surface of the sole (i.e. the surface of portion 610,612 of 131 is a ground contact surface, inasmuch as has been claimed by Applicant, in that it would face and can contact a ground surface) includes the thermoplastic material (para.43-45 & 88; Fig.6 & 13).
Regarding Claim 3, Podhajny discloses an article of footwear of claim 1, wherein the sole includes reflowed polymeric material of the thermoplastic material (para.45, 88 & 92; Fig.13).
Regarding Claim 4, Podhajny discloses an article of footwear of claim 3, wherein a ground contact surface of the sole (i.e. the surface of portion 610,612 of 131 is a ground contact surface, inasmuch as has been claimed by Applicant, in that it would face and can contact a ground surface) includes the reflowed polymeric material (para.45, 88 & 92; Fig.13).
Regarding Claim 5, Podhajny discloses an article of footwear of claim 1, wherein at least one of the one or more interlooped yarns includes a core and a sheath (para.44), and the sheath includes the thermoplastic material (of 1302; as seen in Fig.14B).
Regarding Claim 6, Podhajny discloses an article of footwear of claim 1, wherein: the one or more interlooped yarns comprising the first material is a first yarn (1302/901), the one or more interlooped yarns include a second yarn (1302/902) comprising a second thermoplastic material (para.45, 68-70 & 88; Fig.13), and a ground contact surface of the sole (i.e. the surface of portion 610,612 of 131 is a ground contact surface, inasmuch as has been claimed by Applicant, in that it would face and can contact a ground surface) is a polymeric composition of reflowed polymeric material of the first yarn and reflowed polymeric material of the second yarn (para.45, 88 & 92; Fig.13).
Regarding Claim 7, Podhajny discloses an article of footwear of claim 1, wherein: the one or more interlooped yarns comprising the first material is a first yarn (1302/901), the one or more interlooped yarns include a second yarn (1302/902) comprising a second thermoplastic material (para.45, 68-70 & 88; Fig.13), and a ground contact surface of the sole (i.e. the surface of portion 610,612 of 131 is a ground contact surface, inasmuch as has been claimed by Applicant, in that it would face and can contact a ground surface) is a polymeric composition of polymeric material of the first yarn and polymeric material of the second yarn (para.45 & 88; as seen in Fig.6 & 13).
Regarding Claim 8, Podhajny discloses an article of footwear of claim 1, wherein: the one or more interlooped yarns comprising the first material are at an outer layer (i.e. 1302 of layer containing 901 & 903) of the sole; the sole further includes an inner layer (i.e. 1301 of layer containing 902 & 904) integrally knit with the outer layer (para.67); and the inner layer includes a yarn comprising a different material than the first material and establishes a footbed having a foot contact surface (para.45 & 88; Fig.13).
Regarding Claim 9, Podhajny discloses an article of footwear of claim 8, wherein a ground contact surface of the sole (i.e. the surface of portion 610,612 of 131 is a ground contact surface, inasmuch as has been claimed by Applicant, in that it would face and can contact a ground surface) includes reflowed polymeric material of the thermoplastic material (para.45, 88 & 92; Fig.13), and one or more portions of the ground contact surface including the reflowed polymeric material have a different coefficient of friction relative to the foot contact surface including the yarn of the inner layer (para.45, 88 & 92; i.e. the hardened thermoplastic would have a different coefficient of friction from the not hardened polyester yarn).
Regarding Claim 10, Podhajny discloses an article of footwear of claim 8, wherein a ground contact surface of the sole includes polymeric material of the thermoplastic material (para.45, 88), and one or more portions of the of the ground contact surface including the polymeric material have a different coefficient of friction relative to the foot contact surface including the yarn of the inner layer (para.45, 88 & 92; i.e. the hardened thermoplastic would have a different coefficient of friction from the not hardened polyester yarn).
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.
4. Claim(s) 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Podhajny (US 2015/0216256) in view of Huffa (US 2019/0335857).
Regarding Claim 11, Podhajny discloses the invention substantially as claimed above. Podhajny does not disclose wherein the yarn of the inner layer establishing the footbed includes two or more twisted core yarns with cut pile yarns between the twisted core yarns. However, Huffa teaches a knit upper formed of a chenille yarn (para.98; i.e. para.70 of Applicant's specification states that chenille is yarn formed by two or more twisted core yarns with cut pile yarns between the twisted core yarns).
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 inner layer yarn of Podhajny of chenille yarn (i.e. two or more twisted core yarns with cut pile yarns
between the twisted core yarns), as taught by Huffa, in order to provide a soft surface
against a user's skin, enhancing the comfort. 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.
5. Claim(s) 12-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Podhajny (US 2015/0216256) in view of Li (US 2018/0343954).
Regarding Claim 12, Podhajny discloses the invention substantially as claimed above, including wherein the footwear upper includes: a knitted medial quarter at a medial side of the article of footwear; a knitted lateral quarter at a lateral side of the article of footwear; and a knitted heel portion extending between the knitted medial quarter and the knitted lateral quarter at a rear of the article of footwear; wherein the sole and the footwear upper together define a foot-receiving cavity (as seen in Fig.1-2 & 6). Podhajny does not disclose a knitted tongue secured to the knitted medial quarter; wherein the knitted medial quarter, the knitted lateral quarter, the knitted tongue, and the knitted heel portion together define an ankle opening at the foot-receiving cavity; and wherein the knitted lateral quarter extends to form a strap configured to cross over the knitted tongue and secure at the knitted medial quarter to secure a foot within the foot-receiving cavity. However, Li teaches a knit upper having a knitted medial quarter at a medial side of the article of footwear; a knitted lateral quarter at a lateral side of the article of footwear (see annotated Figure below); a knitted tongue (b50) secured (via attachment) to the knitted medial quarter (as seen in Fig.15); and a knitted heel portion extending between the knitted medial quarter and the knitted lateral quarter at a rear of the article of footwear (see annotated Figure below); wherein the knitted medial quarter, the knitted lateral quarter, the knitted tongue, and the knitted heel portion together define an ankle opening at the foot-receiving cavity (as seen in Fig.15); and wherein the knitted lateral quarter extends to form a strap (b12) configured to cross over the knitted tongue and secure (via 91) at the knitted medial quarter (at 92) to secure a foot within a foot-receiving cavity (para.71-72; as seen in Fig.15).
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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 substituted the upper blank shape of Podhajny for the upper blank shape taught by Li, as a simple substitution of one well known type of upper construction for another, in order to yield the predictable result of providing a shoe upper with easy access for insertion of a foot.
Regarding Claim 13, When in combination, Podhajny and Li teach an article of footwear of claim 12, wherein the footwear upper has a knitted toe box (Podhajny: toe box region of 120 & Li: b40) forward of the knitted tongue (Li: b50), the knitted toe box including an elastomeric yarn (Podhajny: para.44) adjacent to a forward extent of the knitted tongue (as seen in Fig.1 of Podhajny & Fig.15 of Li).
Regarding Claim 14, Podhajny discloses an article of footwear of claim 13, wherein the knitted toe box (i.e. toe box region of 120) further includes a reflowed polymeric material of an additional yarn knitted with the elastomeric yarn and forming a reinforcing skin at a lower portion of the knitted toe box adjacent to the sole (para.44-45, 86, 88 & 91-92).
Regarding Claim 15, Podhajny discloses an article of footwear of claim 13, wherein the knitted toe box (i.e. toe box region of 120) further includes a polymeric material of an additional yarn knitted with the elastomeric yarn and forming a reinforcing skin at a lower portion of the knitted toe box adjacent to the sole (para.44-45, 86, 88 & 91-92).
6. Claim(s) 16-24 is/are rejected under 35 U.S.C. 103 as being unpatentable over Li (US 2018/0343954) in view of Rudolf (US 2018/0317592).
Regarding Claim 16, Li discloses an article of footwear, comprising: a knitted component (100/600; para.26-27 & 68) forming one or more of an overfoot portion (b10, b11, b12, b40, b50) of the footwear and an underfoot portion (b20,b30) of the article of footwear (as seen in Fig.14 & 15); wherein the underfoot portion comprises an external facing layer forming ground contacting portions and an internal facing layer forming foot contacting portions (para.27; i.e. a double knit material has two layers, one which would form a ground contacting portion and one which would contact a user’s foot). Li does not disclose the external facing layer including a first material comprising a thermoplastic material and the internal facing layer including a second material different from the first material; wherein one or more portions of the external facing layer including the first material have a different coefficient of friction relative to the internal facing layer including the second material. However, Rudolf teaches a double knit upper (102; para.23) having an external facing layer (142) including a first material (of 144) comprising a thermoplastic material (para.23, 26-27) and an internal facing layer including a second material (of 148) different from the first material (para.30); wherein one or more portions of the external facing layer including the first material have a different coefficient of friction relative to the internal facing layer including the second material (para.29-30 & 32; i.e. a thermoplastic polymer yarn has a different coefficient of friction than cotton or silk).
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 external and internal facing layers of Li with thermoplastic material and a second, different material, as taught by Rudolf, in order to provide a durable upper that can withstand wear-and-tear of use by a wearer.
Regarding Claim 17, Rudolf further teaches an article of footwear of claim 16, wherein the one or more portions of the external facing layer (142) have a greater coefficient of friction relative to the internal facing layer including the second material (para.29-30, 32 & 38; i.e. a thermoplastic polymer yarn has a greater coefficient of friction than cotton or silk).
Regarding Claim 18, Li discloses the invention substantially as claimed above. Li does not disclose the external facing layer further comprises one or more raised traction elements including the first material. However, Rudolf teaches the upper wherein the external facing layer (142) further comprises one or more raised traction elements (162) including the first material (para.38).
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 modified the upper of Li to include raised traction elements, as taught by Rudolf, in order to provide enhanced grip when performing an athletic activity.
Regarding Claim 19, Rudolf further teaches an article of footwear of claim 18, wherein the one or more raised traction elements includes reflowed first material (para.23, 26 & 38).
Regarding Claim 20, Rudolf further teaches an article of footwear of claim 16, wherein the external facing layer (142) comprises one or more interlooped yarns, each of the one or more interlooped yarns having a coating (308) of the first material surrounding a core yarn (306), the core yarn having a second material that excludes the thermoplastic material and has a greater melting temperature than the first material (para.26 & 51).
Regarding Claim 21, Rudolf further teaches an article of footwear of claim 20, wherein the first material is at least partially fused with one or more core yarns (para.26 & 51).
Regarding Claim 22, When in combination, Li and Rudolf teach an article of footwear of claim 21, wherein the internal facing layer (of Li) comprises one or more second interlooped yarns comprising the second material (Rudolf: of 148); and wherein the first material (Rudolf: of 144) is at least partially fused to a portion of the one or more second interlooped yarns (Rudolf: para.30-32).
Regarding Claim 23, Rudolf further teaches an article of footwear of claim 20, wherein one or more intersection portions at or near a junction of the external facing layer and the internal facing layer include the first material (para.23 & 32; i.e. a double knit material has tie yarns which are at or near a junction of the external facing layer and the internal facing layer including the first material).
Regarding Claim 24, Li further discloses an article of footwear of claim 16, wherein the overfoot portion includes: a knitted medial quarter at a medial side of the article of footwear; a knitted lateral quarter at a lateral side of the article of footwear (see annotated Figure below); a knitted tongue (b50) secured (via attachment) to the knitted medial quarter (as seen in Fig.15); and a knitted heel portion extending between the knitted medial quarter and the knitted lateral quarter at a rear of the article of footwear (see annotated Figure above); wherein the knitted medial quarter, the knitted lateral quarter, the knitted tongue, and the knitted heel portion together define an ankle opening into a foot-receiving cavity over the underfoot portion (as seen in Fig.15); and wherein the knitted lateral quarter extends to form a strap (b12) configured to cross over the knitted tongue and secure (via 91) at the knitted medial quarter (at 92) to secure a foot within a foot-receiving cavity over the underfoot portion (para.71-72; as seen in Fig.15).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
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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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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/MEGAN E LYNCH/Primary Examiner, Art Unit 3732