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 .
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) 1-6, 8-9, 12, and 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over a first embodiment of Blanche et al. (US 2020/0205512) in view of a second embodiment of Blanche et al., hereinafter referred to as Blanche2.
Regarding Claim 1, Blanche et al. teaches an article of footwear (10) comprising: a sole structure (12) including: a front midsole component (14A) and a rear midsole component (14B), the front midsole component and the rear midsole component together defining a groove (17) at a lower side of the sole structure between the front midsole component and the rear midsole component (fig. 5 shows the front (14A) and rear (14B) midsole components together defining a groove (17) at a lower side of the sole between the front and rear midsole components); and a divided footwear upper (18) secured to the sole structure to define a foot-receiving cavity (figs. 1-4 show the upper (18) being secured to the sole (12) to define a foot-receiving cavity); wherein: the divided footwear upper includes a front upper portion (18A) secured to the front midsole component, and a rear upper portion (18B) secured to the rear midsole component (paragraph [0105] teaches “The front upper portion 18A of the divided upper 18 particularly is fixed to the front midsole component 14A, and/or the separate rear upper portion 18B particularly is fixed to the rear midsole component 14B”); the front midsole component and the rear midsole component are pivotable relative to one another at the groove between a use position and an access position with the groove relatively open in the use position and relatively closed in the access position (paragraph [0107] teaches “The front midsole component 14A and the rear midsole component 14B are pivotable relative to one another at the groove 17 between a use position of FIG. 1 and an access position of FIG. 3.”mand paragraph [0108] teaches “the groove 17 is relatively open and/or the front upper portion 18A and the rear upper portion 18B are adjacent to one another in the use position. As shown in FIG. 3, the groove 17 is relatively closed and at least parts of the front upper portion 18A and the rear upper portion 18B are spaced further apart from one another in the access position than in the use position”); the front midsole (14A) component includes a heel footbed (38) that extends over the groove and overlays the rear midsole component in the use position, and is spaced apart from the rear midsole component in the access position (paragraph [0120] teaches “The front midsole component 14A extends in the forefoot region 26 and the midfoot region 28, and/or particularly includes a heel footbed 38 (see, e.g., FIGS. 3 and 4)”; figs. 3-6 show the heel footbed extending over the groove (17), overlaying the rear midsole component in the use position, and being spaced from the rear midsole component in the access position); the heel footbed and the rear midsole component include complementary interlocking features (82, 93) that secure the heel footbed in the use position (paragraph [0179] teaches “The interfacing of the tab 82 and the rib 93 particularly is thus a snap-fit or interlocking feature,” wherein fig. 13 shows this interlocking relationship).
Blanche et al. does not teach wherein the sole structure is characterized by an absence of a biasing member extending between and connecting the front upper portion and the rear upper portion, and the absence of a biasing member extending between and connecting the front midsole component and the rear midsole component, and the absence of a biasing member extending between and connecting the front upper portion and the rear midsole component, and the absence of a biasing member extending between and connecting the rear upper portion and the front midsole component.
Attention is drawn to Blanche2, which teaches an analogous article of footwear. Blanche2 teaches an article of footwear (610) comprising: a sole structure (612) including: a front midsole component (614A) and a rear midsole component (614B), the front midsole component and the rear midsole component together defining a groove (17) at a lower side of the sole structure between the front midsole component and the rear midsole component (fig. 23 shows the groove (17) at a lower side of the sole structure (612) between the front (614A) and rear (614B) midsole components); and a divided footwear upper (18) secured to the sole structure to define a foot-receiving cavity (fig. 23 shows the divided footwear upper (18) secured to the sole (612) to define a foot-receiving cavity); wherein: the divided footwear upper includes a front upper portion (18A) secured to the front midsole component, and a rear upper portion (18B) secured to the rear midsole component (fig. 23 shows the front (18A) and rear (18B) upper portions secured to the front (614A) and rear (614B) midsole components, respectively); the front midsole component and the rear midsole component are pivotable relative to one another at the groove between a use position and an access position with the groove relatively open in the use position and relatively closed in the access position (paragraph [0210] teaches “The front midsole component 614A and the rear midsole component 614B are pivotable relative to one another at the groove 17 between a use position (FIG. 23) and an access position (which is the same as that in FIG. 3) so that confronting surfaces 16A, 16B of the connecting member 616 at the groove 17 are closer to one another in the access position than in the use position with the groove 17 relatively open in the use position and relatively closed in the access position.”); the front midsole component includes a heel footbed (638) that extends over the groove and overlays the rear midsole component in the use position, and is spaced apart from the rear midsole component in the access position (fig. 26 shows the heel footbed (638) extending over the groove and overlaying the rear midsole component (614B) in the use position and clearly being spaced apart from the rear midsole component in the access position); the heel footbed and the rear midsole component include complementary interlocking features (682, 694) that secure the heel footbed in the use position (paragraph [0227] teaches “the tab 682 can compress and move past softer, compressible portions of the rear upper portion 18B and interlock with the rear midsole component 614B, which particularly includes a rib 693 and a recess 694 below the rib 693,” wherein fig. 26 shows this interlocking occurring in the use position); and the sole structure is characterized by an absence of a biasing member extending between and connecting the front upper portion and the rear upper portion, and the absence of a biasing member extending between and connecting the front midsole component and the rear midsole component, and the absence of a biasing member extending between and connecting the front upper portion and the rear midsole component, and the absence of a biasing member extending between and connecting the rear upper portion and the front midsole component (paragraph [0208] teaches “the elastic biasing member 650 is removably secured to the sole structure 612 particularly via hook-and-loop fasteners 657,” therein when the elastic biasing member is removed, the sole structure is clearly characterized by an absence of a biasing member connecting any of the portions as recited).
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 Blanche et al. to include the teachings of Blanche2 such that elastic biasing member is removably secured so that the sole structure is capable of being characterized by an absence of a biasing member extending between and connecting the front upper portion and the rear upper portion, and the absence of a biasing member extending between and connecting the front midsole component and the rear midsole component, and the absence of a biasing member extending between and connecting the front upper portion and the rear midsole component, and the absence of a biasing member extending between and connecting the rear upper portion and the front midsole component so as to better give the wearer control over the movement of the shoe between the use and access positions.
Regarding Claim 2, Blanche et al. teaches all of the limitations of the article of footwear of Claim 1, as discussed in the rejections above. Blanche et al. further teaches wherein: the sole structure further comprises a stiffening layer (78) secured at a periphery of the heel footbed (fig. 7 shows the stiffening layer (38) secured at a periphery of the heel footbed (38)); and the stiffening layer is stiffer than the heel footbed (paragraph [0165] teaches “The body 36A may be relatively less hard than the external stiffening layer 78. For example, the body 36A may have a first hardness and the external stiffening layer 78 may have a second hardness greater than the first hardness,” therein the stiffening layer is clearly stiffer than the heel footbed).
Regarding Claim 3, Blanche et al. teaches all of the limitations of the article of footwear of Claim 1, as discussed in the rejections above. Blanche et al. further teaches a peripheral support (91) secured to the rear midsole component (14B); and wherein the peripheral support is stiffer than the rear midsole component (paragraph [0176] teaches “The stiffening component 91 particularly is relatively harder than the body 36B”).
Regarding Claim 4, Blanche et al. teaches all of the limitations of the article of footwear of Claim 3, as discussed in the rejections above. Blanche et al. further teaches wherein: a clip (93) projects forward from an inner surface of the rear midsole component (14B); the clip overlays a rear extent of the heel footbed when the sole structure is in the use position (fig. 13 shows the clip (93) projecting forward from an inner surface of the rear midsole component (14B) and overlaying a rear extent of the heel footbed (38), which includes structure 78. 82); and the clip flexibly interfaces with the peripheral support when the sole structure moves from the access position to the use position and from the use position to the access position (paragraph [0179] teaches “The extension of the tab 82 rearward, and the protrusion of the rib 93 forward causes the relatively soft body 36A at the heel footbed 38 and/or the relatively soft body 36B of the rear midsole component 14B to elastically deform in the longitudinal direction of the footwear 10 in order to allow the tab 82 to ride along the exterior surface of the rib 93 and move over the rib 93... Once the tab 82 moves past the rib 93, the body 36A and/or 36B resiliently recovers from the elastic deformation by springing back to a pre-deformed state (e.g., the respective shape prior to the deformation caused by the tab 82 interfacing with the rib 93, but as may be different than when the sole structure 12 is in the access position due to any deformation caused by the weight of the foot of the wearer),” therein the clip (93) clearly flexibly interfaces with the peripheral support (91) to allow the sole structure to move from access to use positions).
Regarding Claim 5, Blanche et al. teaches all of the limitations of the article of footwear of Claim 1, as discussed in the rejections above. Blanche et al. further teaches wherein: a clip (93) projects forward from an inner surface of the rear midsole component (14B); the clip overlays a rear extent of the heel footbed when the sole structure is in the use position (fig. 13 shows the clip (93) projecting forward from an inner surface of the rear midsole component (14B) and overlaying a rear extent of the heel footbed (38), which includes structure 78. 82)
Regarding Claim 6, Blanche et al. teaches all of the limitations of the article of footwear of Claim 5, as discussed in the rejections above. Blanche et al. further teaches wherein a rear extent of the rear midsole component (14B) defines an external ledge (see annotated Fig.) positioned rearward of the clip such that depressing the external ledge moves the clip away from the rear extent of the heel footbed (annotated fig. 13 shows the external ledge positioned rearward of the clip, and as paragraph [0179] teaches “the relatively soft body 36A at the heel footbed 38 and/or the relatively soft body 36B of the rear midsole component 14B to elastically deform in the longitudinal direction of the footwear 10 in order to allow the tab 82 to ride along the exterior surface of the rib 93 and move over the rib 93,” the external ledge is clearly capable of being depressed in such a manner that the clip will move away from the rear extent of the heel footbed (38)).
Regarding Claim 8, Blanche et al. teaches all of the limitations of the article of footwear of Claim 1, as discussed in the rejections above. Blanche et al. further teaches wherein the sole structure further comprises: a first plate (76) disposed on or in the heel footbed and extending over the groove in the use position (paragraph [0162] teaches “a plate 76 is embedded in the body 36A” and paragraph [0163] teaches “the plate 76 may extend at least to the groove 17 (e.g., to the groove 17, or more forward then the groove 17), such as to the midfoot region 28 or the forefoot region 26” therein the first plate (76) is clearly disposed in the heel footbed (as shown in fig. 6) and the extends over the groove); and a second plate (78) disposed on or in the heel footbed, the second plate disposed nearer to a bottom surface of the heel footbed than the first plate, and the first plate disposed nearer to a top surface of the heel footbed than the second plate (fig. 6 shows the second plate (78) disposed on the heel footbed, nearer the bottom surface of the heel footbed than the first plate (76)).
Regarding Claim 9, Blanche et al. teaches all of the limitations of the article of footwear of Claim 8, as discussed in the rejections above. Blanche et al. further teaches wherein a rear extent of the first plate (76) is disposed rearward of a front extent of the second plate (78) along a length of the heel footbed (38) such that the first plate and the second plate partially overlap (fig. 6 shows the rear extent of the first plate (76) being disposed rearward of a front extend of the second plate (78) such that the first and second plates partially overlap)).
Regarding Claim 12, Blanche et al. teaches all of the limitations of the article of footwear of Claim 9, as discussed in the rejections above. Blanche et al. further teaches wherein both the first plate (76) and the second plate (78) at least partially overlay the rear midsole component (14B) in the use position (fig. 13 shows the first (76) and second (78) plates overlaying the rear midsole component (14B) in the use position).
Regarding Claim 14, Blanche et al. teaches all of the limitations of the article of footwear of Claim 1, as discussed in the rejections above. Blanche et al. further teaches wherein: the front midsole component (14A) includes a first wall (see annotated Fig.) defining a front of the groove; and the rear midsole (14B) component includes a second wall (see annotated Fig.) defining a rear of the groove (annotated fig. 5 shows the first and second walls defining the front and rear of the groove (17), respectively).
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Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-15 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, 4, 6-17, and 19 of U.S. Patent No. 12402689. Although the claims at issue are not identical, they are not patentably distinct from each other because as disclosed, the differences are minor and obvious.
Instant App '802
US Patent '689
1
An article of footwear comprising: a sole structure including: a front midsole component and a rear midsole component, the front midsole component and the rear midsole component together defining a groove at a lower side of the sole structure between the front midsole component and the rear midsole component; and a divided footwear upper secured to the sole structure to define a foot-receiving cavity; wherein: the divided footwear upper includes a front upper portion secured to the front midsole component, and a rear upper portion secured to the rear midsole component; the front midsole component and the rear midsole component are pivotable relative to one another at the groove between a use position and an access position with the groove relatively open in the use position and relatively closed in the access position; the front midsole component includes a heel footbed that extends over the groove and overlays the rear midsole component in the use position, and is spaced apart from the rear midsole component in the access position; the heel footbed and the rear midsole component include complementary interlocking features that secure the heel footbed in the use position; and the sole structure is characterized by an absence of a biasing member extending between and connecting the front upper portion and the rear upper portion, and the absence of a biasing member extending between and connecting the front midsole component and the rear midsole component, and the absence of a biasing member extending between and connecting the front upper portion and the rear midsole component, and the absence of a biasing member extending between and connecting the rear upper portion and the front midsole component.
1
An article of footwear comprising: a sole structure including: a front midsole component and a separate rear midsole component, the front midsole component and the rear midsole component together defining a groove at a lower side of the sole structure between the front midsole component and the rear midsole component; a divided footwear upper secured to the sole structure to define a foot-receiving cavity...wherein: the divided footwear upper includes a front upper portion secured to the front midsole component, and a separate rear upper portion secured to the rear midsole component; the front midsole component and the rear midsole component are pivotable relative to one another at the groove between a use position and an access position with the groove relatively open in the use position and relatively closed in the access position; the front midsole component includes a heel footbed that extends over the groove and overlays the rear midsole component in the use position, and is spaced apart from the rear midsole component in the access position... the sole structure further including a tab protruding at a side periphery of the heel footbed; wherein the tab is disposed in the recess when the sole structure moves to the use position to secure the heel footbed in the use position; and wherein the sole structure is characterized by an absence of a biasing member extending between and connecting the front upper portion and the rear upper portion, and the absence of a biasing member extending between and connecting the front midsole component and the rear midsole component, and the absence of a biasing member extending between and connecting the front upper portion and the rear midsole component, and the absence of a biasing member extending between and connecting the rear upper portion and the front midsole component.
2
The article of footwear of claim 1, wherein: the sole structure further comprises a stiffening layer secured at a periphery of the heel footbed; and the stiffening layer is stiffer than the heel footbed.
2
The article of footwear of claim 1, wherein: the sole structure further comprises a stiffening layer secured at the side periphery of the heel footbed; and the stiffening layer is stiffer than the heel footbed and includes the tab.
3
The article of footwear of claim 1, further comprising: a peripheral support secured to the rear midsole component; and wherein the peripheral support is stiffer than the rear midsole component.
4
The article of footwear of claim 3, wherein: the sole structure further comprises a stiffening layer secured at the side periphery of the heel footbed; and the lateral-side tab and the medial-side tab are integral with the stiffening layer.
4
The article of footwear of claim 3, wherein: a clip projects forward from an inner surface of the rear midsole component; the clip overlays a rear extent of the heel footbed when the sole structure is in the use position; and the clip flexibly interfaces with the peripheral support when the sole structure moves from the access position to the use position and from the use position to the access position.
6
wherein: the peripheral support includes an integral [[a]] clip that projects forward from the inner surface of the rear midsole component; the clip overlays a rear extent of the heel footbed when the sole structure is in the use position; and the clip flexibly interfaces with the heel footbed
5
The article of footwear of claim 1, wherein: a clip projects forward from an inner surface of the rear midsole component; and the clip overlays a rear extent of the heel footbed when the sole structure is in the use position.
7
The article of footwear of claim 1, wherein: a clip projects forward from the inner surface of the rear midsole component; and the clip overlays a rear extent of the heel footbed when the sole structure is in the use position.
6
The article of footwear of claim 5, wherein a rear extent of the rear midsole component defines an external ledge positioned rearward of the clip such that depressing the external ledge moves the clip away from the rear extent of the heel footbed.
8
The article of footwear of claim 7, wherein a rear extent of the rear midsole component defines an external ledge positioned rearward of the clip such that depressing the external ledge moves the clip away from the rear extent of the heel footbed.
7
The article of footwear of claim 6, further comprising: a cover disposed on the external ledge; and wherein the cover is integral with the clip.
9
The article of footwear of claim 8, further comprising: a cover disposed on the external ledge; and wherein the cover is integral with the clip.
8
The article of footwear of claim 1, the sole structure further comprising: a first plate disposed on or in the heel footbed and extending over the groove in the use position; and a second plate disposed on or in the heel footbed, the second plate disposed nearer to a bottom surface of the heel footbed than the first plate, and the first plate disposed nearer to a top surface of the heel footbed than the second plate.
10
The article of footwear of claim 1, the sole structure further comprising: a first plate disposed on or in the heel footbed and extending over the groove in the use position; and a second plate disposed on or in the heel footbed, the second plate disposed nearer to a bottom surface of the heel footbed than the first plate, and the first plate disposed nearer to a top surface of the heel footbed than the second plate.
9
The article of footwear of claim 8, wherein a rear extent of the first plate is disposed rearward of a front extent of the second plate along a length of the heel footbed such that the first plate and the second plate partially overlap.
11
The article of footwear of claim 10, wherein a rear extent of the first plate is disposed rearward of a front extent of the second plate along a length of the heel footbed such that the first plate and the second plate partially overlap.
10
The article of footwear of claim 9, wherein the first plate is disposed at the top surface of the heel footbed and the second plate is disposed at the bottom surface of the heel footbed.
12
The article of footwear of claim 11, wherein the first plate is disposed at the top surface of the heel footbed and the second plate is disposed at the bottom surface of the heel footbed.
11
The article of footwear of claim 9, wherein the front extent of the second plate is disposed partially over the groove in the use position.
13
The article of footwear of claim 11, wherein the front extent of the second plate is disposed partially over the groove in the use position.
12
The article of footwear of claim 9, wherein both the first plate and the second plate at least partially overlay the rear midsole component in the use position.
14
The article of footwear of claim 11, wherein both the first plate and the second plate at least partially overlay the rear midsole component in the use position.
13
The article of footwear of claim 1, further comprising: a resilient band suspended over and extending transversely across the rear midsole component; wherein, in the access position, the heel footbed rests on the resilient band; and wherein, in the use position, the resilient band stretches under load and the heel footbed rests on the rear midsole component.
16
The article of footwear of claim 1, further comprising: a resilient band suspended over and extending transversely across a portion of the inner surface of the rear midsole component; wherein, in the access position, the resilient band is spaced apart from the portion of the inner surface of the rear midsole component and the heel footbed rests on the resilient band; and wherein, in the use position, the resilient band resiliently stretches under load and the heel footbed rests on the inner surface of the rear midsole component.
14
The article of footwear of claim 1, wherein: the front midsole component includes a first wall defining a front of the groove; and the rear midsole component includes a second wall defining a rear of the groove.
17
The article of footwear of claim 1, wherein: the front midsole component includes a first wall defining a front of the groove; the rear midsole component includes a second wall defining a rear of the groove…
15
An article of footwear comprising: a sole structure including: a front midsole component and a rear midsole component, the front midsole component and the rear midsole component together defining a groove at a lower side of the sole structure between the front midsole component and the rear midsole component; and a resilient band suspended over and extending transversely across the rear midsole component; wherein: the front midsole component and the rear midsole component are pivotable relative to one another at the groove between a use position and an access position with the groove relatively open in the use position and relatively closed in the access position; the front midsole component includes a heel footbed that extends over the groove and overlays the rear midsole component in the use position, and is spaced apart from the rear midsole component in the access position; in the access position, the heel footbed rests on the resilient band; and in the use position, the resilient band stretches under load and the heel footbed rests on the rear midsole component.
19
An article of footwear comprising: a sole structure including: a front midsole component and a separate rear midsole component, the front midsole component and the rear midsole component together defining a groove at a lower side of the sole structure between the front midsole component and the rear midsole component... and a resilient band suspended over and extending transversely across a portion of an inner surface of the rear midsole component; wherein: the front midsole component and the rear midsole component are pivotable relative to one another at the groove between a use position and an access position with the groove relatively open in the use position and relatively closed in the access position; the front midsole component includes a heel footbed that extends over the groove and overlays the rear midsole component in the use position, and is spaced apart from the rear midsole component in the access position... in the access position, the resilient band is spaced apart from the portion of the inner surface of the rear midsole component and the heel footbed rests on the resilient band; and in the use position, the resilient band stretches under load and the heel footbed further rests on the inner surface of the rear midsole component.
Allowable Subject Matter
Claims 7, 10, 11, and 13 are objected to as being dependent upon a rejected base claim, but would be allowable if the double patenting rejection is over come and the claim is rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Examiner notes that Claim 15 is free of any art rejection but is still rejected on the ground of nonstatutory double patenting as noted above.
Conclusion
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/HALEY A SMITH/Primary Examiner, Art Unit 3732
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