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 .
Applicant’s amendment filed April 24, 2026 has been received, Claims 1-5 are currently pending.
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.
1. Claim(s) 1-5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Noel (DE 3228017 A1) in view of Dulude (US 2019/0365023).
Regarding Claim 1, Noel discloses a mobile breathing sole, comprising an upper sole (5), a breathing layer (4), and a lower sole (1), wherein the upper sole, the breathing layer, and the lower sole are bonded together (as seen in Fig.1; i.e. as 1, 4 & 5 are permanently connected they are “bonded” together, inasmuch as has been claimed by Applicant); the arch region of the upper sole is provided with ventilation holes (14), and the bottom of the upper sole is bonded to the breathing layer (as seen in Fig.1); the breathing layer, wherein the breathing layer is provided with an air inlet hole (12), an air chamber (rearmost 10), a ventilation hole (13 in 10.4), a breathing hole (13 in forefoot), a breathing channel (10 in forefoot), and an air inlet channel (11); the heel portion of the breathing layer is provided with the air chamber (as seen in Fig.1 & 2); the bottom of the air chamber is provided with the air inlet hole (12); the toe-front region of a sole portion of the breathing layer is provided with the breathing channel (as seen in Fig.1 & 2); the breathing channel (10 in forefoot) is provided with the breathing hole (13 in forefoot); the arch portion of the breathing layer is provided with the ventilation hole (13 in 10.4); the air inlet hole, the ventilation hole, and the breathing hole are interconnected through the breathing channel (as seen in Fig.2); the lower sole, wherein the top (i.e. top surface of 1) of the lower sole is bonded to the breathing layer (as seen in Fig.1). Noel does not disclose the upper sole, the breathing layer, and the lower sole are bonded together by adhesive. However, Dulude teaches a breathing shoe sole having an upper sole (500), a breathing layer (300), and a lower sole (200) are bonded together by adhesive (para.27 & 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 substituted the permanent attachment of Noel with the adhesive of Dulude, as a simple substitution of one well known type of permanent sole securement for another, in order to yield the predictable result of providing a sole that is fully functional and does not fall apart during use.
Regarding Claim 2, Noel discloses a mobile breathing sole according to claim 1, wherein the air inlet channel is a first air inlet channel (11); wherein the breathing layer (4) comprises a second air inlet channel (10.4); the breathing channel (10 in forefoot) is connected with the air inlet hole (12) through the first air inlet channel (11); the ventilation hole (13 in 10.4) is connected with the first air inlet channel through the second air inlet channel (10.4)(as seen in Fig.2).
Regarding Claim 3, Noel discloses a mobile breathing sole according to claim 1, wherein the air chamber (rearmost 10) having a frustum structure (as seen in Fig.1). Noel does not disclose the air chamber having a diameter of the top of the air chamber is greater than the diameter of the bottom of the air chamber. However, Dulude teaches a heel air chamber (351/410) having a frustum structure (as seen in Fig.1), and the diameter of the top of the air chamber is greater than the diameter of the bottom of the air chamber (as seen in Fig.1 & 4A).
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 frustum shape of the air chamber of Noel for the frustum shaped air chamber with the diameter of the top of the air chamber is greater than the diameter of the bottom of the air chamber of Dulude, as a simple substitution of one well known heel air chamber shape for another, in order to yield the predictable result of providing a sole that circulates air and keeps a user’s foot dry.
Regarding Claim 4, Noel discloses a mobile breathing sole according to claim 1, wherein the breathing channel (10 in forefoot) is formed in the forefoot toe flexion area of the breathing layer (as seen in Fig.1 & 2; inasmuch as has been claimed by Applicant; 10 in the forefoot is formed in the forefoot toe flexion area, as it is known for the forefoot to flex during a user’s stride).
Regarding Claim 5, Noel discloses a mobile breathing sole according to claim 1, wherein the ventilation hole (13 in 10.4) is formed in the arch region of the breathing layer, and the ventilation hole (13 in 10.4) is located at the same position as one of the upper sole ventilation holes (14)(as seen in Fig.1 & 2).
Response to Arguments
Applicant's arguments filed April 24, 2026 have been fully considered but they are not persuasive.
Applicant's arguments fail to comply with 37 CFR 1.111(b) because they amount to a general allegation that the claims define a patentable invention without specifically pointing out how the language of the claims patentably distinguishes them from the references. All of the structures pointed to by Applicant as not being disclosed by Noel and/or Dulude were clearly addressed in the prior rejection and now above. It is also noted that Dulude was not used to teach a majority of the claim limitations and was merely used as a secondary reference to teach an adhesive and a specific shape, both of which are well known in the footwear art.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
In view of Applicant's amendment, the search has been updated, and newly modified grounds of rejection have been identified and applied. Applicant's arguments have been considered but are moot in view of the newly modified ground(s) of rejection.
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 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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/MEGAN E LYNCH/Primary Examiner, Art Unit 3732
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