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 Group I and species A (support structure (202) as shown in figures 11A-13A) in the reply filed on 4/13/2026 is acknowledged.
Claims 10-17 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 4/13/2026.
Claim Rejections - 35 USC § 112
Claims 2-9 and 19-20 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 pre-AIA the applicant regards as the invention.
The phrase “wherein the support structure has a first compressive strain rate within a first load range and a second compressive strain rate less than the first compressive strain rate at a second load range greater than the first load range” in claims 2 and 19; the phrase “wherein the support structure has a third compressive strain rate greater than the second compressive strain rate within a third load range greater than the second load range” in claims 3 and 19 and the phrase “wherein the support structure has a fourth compressive strain rate less than the third compressive strain rate within a fourth load range greater than the third load range” in claims 4 and 19 are unclear because this limitation merely states a function without providing any indication about how the function is performed. The recited function does not follow from the structure recited in the claim, i.e. support structure, so it is unclear whether the function require some other structure or is simply the result of certain load being applied to the support structure. Moreover, it is not clear what applicant means by “load range”.
In claims 5,8,9 and 20, the phrase “wherein the support structure has a linearity of at least…” is unclear and indefinite. It is not clear what structure applicant is referring too with regard to the term “linearity”. Moreover, this language appears to be purely functional and therefore the scope is not understood.
In claims 6 and 7, the phrase “wherein the support structure has an efficiency of at least…” is unclear and indefinite. It is not clear what structure applicant is referring too with regard to the term “efficiency”. Moreover, this language appears to be purely functional and therefore the scope is not understood.
With regard to claims 5-9 and 20, as understood, it appears from the specification that applicant is referring to the ratio and percentage of energy storage and energy return of the support structure and therefore this is how the claims will be treated in the rejection below.
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 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 and 18 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 2021/0186151 (Gross).
Regarding claims 1, Gross discloses a support structure (see lattice structure; e.g. figures 5-7) for an article of footwear, the support structure comprising:
a base (26),
a platform (28) axially spaced from the base, and
a plurality of flexible struts (legs 30) extending between the base and the platform and configured to bend when a compressive force is applied along an axial direction relative to at least one of the platform or the base.
Regarding claim 18, Gross discloses a support structure (see lattice structure; e.g. figures 5-7) for an article of footwear, the support structure comprising:
a first end (26);
a second end (28); and
an array of flexible struts (legs 30) extending between the first end and the second end and configured to bend when a compressive force is applied along an axial direction relative to the first end and the second end.
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.
Claims 2-9 and 19-20, as understood, is/are rejected under 35 U.S.C. 103 as being unpatentable over Gross ‘151.
Gross teaches a support structure as claimed except for
the compressive strain rates within a load ranges as defined in claims 2-4 and 19.
The support structure has a linearity of at least 1.0, 1.1, 0.95 as defined in claims 5,8,9 and 20
The support structure has an efficiency of at least 80%, 84% as defined in claims 6 and 7.
With regard to the first bullet above, as understood, it would appear to be an obvious design choice to construct the support structure having a compressible strain rates (i.e. rate at which material deforms overtime) within the load ranges as claimed inasmuch as a number of different strain rates would appear to be suitable depending on the type and weight of load being applied. That is, these parameters are recognized in the art to be a variable that is result effective. Generally, it is considered to have been obvious to develop workable or even optimum ranges for such variables. For example, see In re Aller, 220 F.2d 454, 105 USPQ 233 (CCPA 1955) and In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980). Since the applicant has not demonstrated or even alleged that these specifically claimed parameters for the support structure produces any unexpected results, it is concluded that it would have been obvious for an artisan with ordinary skill to determine a workable or even optimum parameters for support structure and thereby arrive at the compressible strain rate as claimed.
With regard to the 2nd and 3rd bullet, as understood, it appears from the specification that applicant is referring to the ratio and percentage of energy storage and energy return of the support structure.
Therefore, with regard to the second and third bullet, as understood, it would appear to be an obvious design choice to construct the support structure having a ratio and percentage of energy storage and energy return as claimed inasmuch as a number of different ratio’s and percentages would appear to be suitable depending on the type and weight of load being applied. That is, these parameters are recognized in the art to be a variable that is result effective. Generally, it is considered to have been obvious to develop workable or even optimum ranges for such variables. For example, see In re Aller, 220 F.2d 454, 105 USPQ 233 (CCPA 1955) and In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980). Since the applicant has not demonstrated or even alleged that these specifically claimed parameters for the support structure produces any unexpected results, it is concluded that it would have been obvious for an artisan with ordinary skill to determine a workable or even optimum parameters for support structure and thereby arrive with the linearity and efficiency (i.e. ratio and percentage of energy storage and return) as claimed. Moreover, see ¶0048,0077 and figure 14 which make reference to “energy return[ed]”.
Moreover with regard to each of the bullets listed above, Gross teaches the structure as claimed and moreover teaches throughout that the size, thickness, angles (j,k) and dimensions of the support structure can vary; e.g. at least see ¶0060,0063,-066,0071,0076 and 0077. 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 the support structure to have a variety of different dimensions as claimed and therefore have the structure as defined in claims 2-9 and 19-20 as claimed.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The prior art cited and not relied upon by the Examiner for the above rejections are considered to be pertinent in that the references cited are considered to be the nearest prior art to the subject matter defined in the claims as required by MPEP707.05.
Applicant is duly reminded that a complete response must satisfy the requirements of 37 C.F. R. 1.111, including:
-“The reply must present arguments pointing out the specific distinctions believed to render the claims, including any newly presented claims, patentable over any applied references.”
--“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 does not comply with the requirements of this section.”
-Moreover, “The prompt development of a clear issue requires that the replies of the applicant meet the objections to and rejections of the claims. Applicant should also specifically point out the support for any amendments made to the disclosure. See MPEP 2163.06” MPEP 714.02. The “disclosure” includes the claims, the specification and the drawings.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TED KAVANAUGH whose telephone number is (571) 272-4556. The examiner can normally be reached on Monday-Thursday 8AM-6PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Khoa Huynh can be reached on 57-1272-4888. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Ted Kavanaugh/
Primary Patent Examiner
Art Unit 3732
Tel: (571) 272-4556
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