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 § 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.
Claims 1-6 are 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.
Claim 1 is rejected because it recites limitations “a section line”. It is not clear what it is.
Any remaining claims are rejected as depending from a rejected base claim.
In the art rejections below the claims have been treated as best understood by the examiner.
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) 1-2, 4-7, 10-15, and 17-19 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Guyan (2016/0360828).
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Regarding claim 1, Guyan discloses a sole for an article of footwear, the sole (figs 1-5) comprising:
a three-dimensional mesh, the mesh comprising: a lattice structure (member 210) comprising a plurality of interconnected unit cells (member 300), each interconnected unit cell comprising a plurality of struts defining a three-dimensional structure and a plurality of nodes at which one or more unit cell struts (member 310) are connected (figs 3A to 5), and
an undulating lower side comprising a plurality of bumps, wherein the bumps are at least partially defined by one or more unit cells of the lattice structure (figs 3B annotated above),
wherein a first bump of the plurality of bumps comprises a first slope angle relative to a plane that is tangential to a first peak of the first bump, and a second bump of the plurality of bumps comprises a second slope angle relative to a plane that is tangential to a second peak of the second bump, and wherein the second slope angle is different from the first slope angle (fig 3B annotated above),
and wherein the plurality of bumps comprise at least two bumps spaced apart along a section line of the sole extending from a medial edge to a lateral edge of the sole (the bumps are in both side of the shoe, figs 1C, 1E, 1F, and 2D).
Regarding claim 2, Guyan discloses the first bump of the plurality of bumps is located in a toe region of the sole and the second bump of the plurality of bumps is located in a heel region of the sole (fig 3B annotated above).
Regarding claim 4, Guyan discloses a plurality of traction elements formed on the plurality of bumps (fig 3B annotated above).
Regarding claim 5, Guyan discloses each one of the plurality of traction elements comprises a separate continuous skin that covers a portion of a respective one of the plurality of bumps (fig 3B annotated above which has the structure on both sides).
Regarding claim 6, Guyan discloses a plurality of connecting ribs formed on the undulating lower side of the mesh and extending between adjacent traction elements of the plurality of traction elements (fig 3B annotated above which has the structure on both sides).
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Regarding claim 7, Guyan discloses a sole for an article of footwear, the sole (figs 1-5) comprising:
a three-dimensional mesh, the mesh comprising: a lattice structure (member 210) comprising a plurality of interconnected unit cells (member 300), each interconnected unit cell comprising a plurality of struts defining a three-dimensional structure and a plurality of nodes at which one or more unit cell struts (member 310) are connected (figs 3A to 5), and
an undulating lower side comprising a plurality of bumps, wherein the bumps are at least partially defined by one or more unit cells of the lattice structure (figs 3B annotated above),
wherein a medial side of a first bump comprises a first slope angle relative to a plane that is tangential to a peak of the first bump and a lateral side of the first bump comprises a second slope angle relative to the plane, and wherein the first slope angle is different from the second slope angle (fig 3D annotated above).
Regarding claim 10, Guyan discloses a plurality of traction elements formed on the plurality of bumps (fig 3B annotated above).
Regarding claim 11, Guyan discloses each one of the plurality of traction elements comprises a separate continuous skin that covers a portion of a respective one of the plurality of bumps (fig 3B annotated above which has the structure on both sides).
Regarding claim 12, Guyan discloses a plurality of connecting ribs formed on the undulating lower side of the mesh and extending between adjacent traction elements of the plurality of traction elements (fig 3B annotated above which has the structure on both sides).
Regarding claim 13, Guyan discloses a sole for an article of footwear, the sole comprising:
a three-dimensional mesh, the mesh comprising: a lattice structure (member 210) comprising a plurality of interconnected unit cells (member 300), each interconnected unit cell comprising a plurality of struts defining a three-dimensional structure and a plurality of nodes at which one or more unit cell struts (member 310) are connected (figs 3A to 5), and
an undulating lower side comprising a plurality of bumps, wherein the bumps are at least partially defined by one or more unit cells of the lattice structure (figs 3B annotated above),
a ground-facing portion on the lower side comprising a plurality of traction elements disposed on the bumps (figs 3B annotated above);
wherein a first traction element of the plurality of traction elements comprises a first skin covering at least two unit cells of the lattice structure, wherein the first skin is spaced apart from an adjacent second skin of a second traction element of the plurality of traction elements (figs 3B annotated above).
Regarding claim 14, Guyan discloses a first surface area of the first skin is different from a second surface area of the second skin (figs 3B annotated above).
Regarding claim 15, Guyan discloses each of the first and second skins comprise a ribbed traction pattern (figs 3B annotated above).
Regarding claim 17, Guyan discloses at least one connecting rib formed on the undulating lower side of the mesh and extending between the first skin and the second skin (figs 3B annotated above).
Regarding claim 18, Guyan discloses the at least one connecting rib is integrally formed with the first and second skins (figs 3B annotated above).
Regarding claim 19, Guyan discloses the at least one connecting rib comprises a wave or ripple shape between the first and second skin (figs 3B annotated above).
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.
Claim(s) 3 and 8-9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Guyan (2016/0360828).
Regarding claims 3 and 8-9, Guyan teaches all limitations except the first and second slope angles are between 5 degrees and 30 degrees and the first and second slope angles are between 50 degrees and 85 degrees.
However, figs 3A to 3H show the slope angles seems to fall between 15 to 130 degrees. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claim invention to modify the sole of Gyan by using different slope angles as suggested in figs 3A to 3H in order to provide stability and cushioning to the footwear. In addition, applicant does not provide any criticality or unexpected results why the angles must be that specific; therefore the court held that the particular placement of a structure was held to be an obvious matter of design choice. The prior art must provide a motivation or reason for the worker in the art, without the benefit of appellant's specification, to make the necessary changes in the reference device." Ex parte Chicago Rawhide Mfg. Co., 223 USPQ 351, 353 (Bd. Pat. App. & Inter. 1984).
Claim(s) 16 and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Guyan (2016/0360828) as applied to claims 15 and 17 above, and further in view of Redon et al. (11,819,088).
Regarding claim 16, Guyan teaches all limitations except the ribbed traction pattern comprises overlapping ribbed circles.
Redon teaches a sole having ribbed traction pattern comprises overlapping ribbed circles (fig 2, claim 1).
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claim invention to modify the sole of Guyan by using the tractions of Redon in order to provide rigidity and stiffness where needed, and accommodating the natural movement and flexion of a foot inside of an article of footwear.
Regarding claim 20, Guyan teaches all limitations except of the at least one connecting rib extends across a width of the sole from a medial side to a lateral side of the sole.
Redon teaches a sole having at least one connecting rib extends across a width of the sole from a medial side to a lateral side of the sole (fig 2, member 116 and 126).
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claim invention to modify the sole of Guyan by using the tractions of Redon in order to provide rigidity and stiffness where needed, and accommodating the natural movement and flexion of a foot inside of an article of footwear.
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 1-21 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 of U.S. Patent No. 12,414,602. Although the claims at issue are not identical, they are not patentably distinct from each other because both applications claim essentially the same elements such as a lattice structure with plurality of interconnected unit cells, a plurality of bumps on the ground facing surface, a separate continuous skin that covers a portion of the bumps. In addition, U.S. Patent No. 12,414,602 teaches the bump heights are different; therefore the slope angles also different (slope = height over distance).
Response to Arguments
Applicant's arguments, date 06-03-2026, with respect to the rejections of claims under 35 U.S.C §102 have been fully considered, but they are not persuasive.
Argument 1: applicant argues that the prior art does not teach the amended limitations. However, this argument is not commensurate with the rejected claims, as the limitations have not been previously presented and they have been address as analyzed above.
Argument 2: applicant argues that the prior art does not teach “a lower side”. However, applicant does not specifically discloses which side is a lower side; therefore the examiner interpret that some structure on a side which is lower than other structure.
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 BAO-THIEU L NGUYEN whose telephone number is (571)270-0476. The examiner can normally be reached M-F 7am-3pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, KHOA D. 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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BAO-THIEU L. NGUYEN
Primary Examiner
Art Unit 3732
/BAO-THIEU L NGUYEN/ Primary Examiner, Art Unit 3732
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