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 I (footwear as shown in figures 1-7) in the reply filed on 5/4/2026 is acknowledged.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-5,7-15 and 17-20 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by US 2024/0398060 (Cobb).
Regarding claims 1-5 and 7-10, Cobb discloses an article of footwear (see figure 5 marked-up below) comprising:
an upper (14); and
a sole structure attached to the upper, the sole structure comprising:
a cushioning element (40) defining a footbed of the sole structure and including a void (Void) extending through a midfoot region of the sole structure; and
a plate (60) disposed within the cushioning element and including a first side (top surface) opposing the footbed and an opposite second side, the first side defining a concave first section (see “1” marked up bellow between the anterior end of the shoe and the first vertical line) disposed in a forefoot region of the sole structure, a convex second section (see “2” marked up bellow between the first and second vertical lines) disposed in a midfoot region of the sole structure, and a concave third section (see “3” marked up bellow between the posterior end of the shoe and the second vertical line) disposed in a heel region of the sole structure.
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Regarding claim [2. (Original) The article of footwear of Claim 1, wherein the concave first section defines a first nadir (N1) of the plate, the convex second section defines an upper apex (A1) of the plate, and the concave third section defines a second nadir (N2) of the plate aligned with the first nadir along a reference plane.]; see figure 5 showing, N1,N2 and A1 as claimed.
Regarding claim [3. (Original) The article of footwear of Claim 2, wherein the concave first section is asymmetrical about the first nadir.]; see figure 5 showing it having a different curvature in different areas of the concave first section and therefore is asymmetrical.
Regarding claim [4. (Original) The article of footwear of Claim 2, further comprising a cushion disposed between the first nadir of the plate and the cushioning element. and 5. (Original) The article of footwear of Claim 4, wherein the second side of the plate contacts the cushion at the first nadir of the plate.]; See cushion (70).
Regarding claim [7. (Original) The article of footwear of Claim 5, wherein a portion of the cushion is spaced apart from the second side of the plate between the first nadir and a posterior end of the sole structure.]; the void as noted above provides a spacing between the cushion and the plate.
Regarding claim [8. (Original) The article of footwear of Claim 1, wherein the cushioning element includes an upper cushioning member abutting the first side of the plate and a lower cushioning member abutting the second side of the plate.] ; at least see figure 5.
Regarding claim [9. (Original) The article of footwear of Claim 8, wherein the upper cushioning member is in contact with the first side of the plate from an anterior end of the plate to a posterior end of the plate. ]; at least see figure 5.
Regarding claim [10. (Original) The article of footwear of Claim 9, wherein the lower cushioning member is spaced apart from the second side of the plate at the void.]; the void as noted above provides a spacing between the cushion and the plate.
Regarding claims 11-15 and 17-20, Cobb teaches an article of footwear (see figure 5 above) comprising:
an upper (14) ; and
a sole structure attached to the upper, the sole structure comprising:
a cushioning element (40) defining a footbed of the sole structure; and
a plate (60 disposed within the cushioning element and including a first side opposing the footbed and an opposite second side, the first side including a concave first section (see claim 1 rejection above) disposed in a forefoot region of the sole structure and defining a first nadir (N1) of the plate, a convex second section (see claim 1 rejection above) disposed in a midfoot region of the sole structure and defining an upper apex (A1) of the plate, and a concave third section (see claim 1 rejection above) disposed in a heel region of the sole structure and defining a second nadir (N2) of the plate.
Regarding [12. (Original) The article of footwear of Claim 11, wherein a distance from the first nadir to an anterior end of the plate is greater than a distance from the second nadir to a posterior end of the plate.]; see figure 5.
Regarding claim [13. (Original) The article of footwear of Claim 12, wherein the concave first section is asymmetrical about the first nadir.]; see figure 5 showing it having a different curvature in different areas of the concave first section and therefore is asymmetrical.
Regarding claim [14. (Original) The article of footwear of Claim 12, further comprising a cushion disposed between the first nadir of the plate and the cushioning element. and 15. (Original) The article of footwear of Claim 14, wherein the second side of the plate contacts the cushion at the first nadir of the plate.]; See cushion (70).
Regarding claim [17. (Original) The article of footwear of Claim 15, wherein a portion of the cushion is spaced apart from the second side of the plate between the first nadir and a posterior end of the sole structure.]; the void as noted above provides a spacing between the cushion and the plate.
Regarding claim [18. (Original) The article of footwear of Claim 11, wherein the cushioning element includes an upper cushioning member abutting the first side of the plate and a lower cushioning member abutting the second side of the plate.] ; at least see figure 5.
Regarding claim [19. (Original) The article of footwear of Claim 18, wherein the upper cushioning member is in contact with the first side of the plate from an anterior end of the plate to a posterior end of the plate. ]; at least see figure 5.
Regarding claim [20. (Original) The article of footwear of Claim 19, wherein the lower cushioning member is spaced apart from the second side of the plate at the void.]; the void as noted above provides a spacing between the cushion and the plate.
Claim(s) 1-20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 7016867 (Lyden).
Regarding claims 1-10, Lyden discloses an article of footwear (e.g. see figure 233) comprising:
an upper (23); and
a sole structure attached to the upper, the sole structure comprising:
a cushioning element (e.g. insole 31, midsole 26) defining a footbed of the sole structure and including a void (see spacing in figure 233 between the forefoot section of the sole structure and the heel section of the sole structure wherein the plate (i.e. portion 47 of the spring) as shown in figure 233 is exposed) extending through a midfoot region of the sole structure; and
a plate (51; see marked up figure 137 below) disposed within the cushioning element and including a first side (top surface) opposing the footbed and an opposite second side, the first side defining a concave first section (see “1” marked up bellow between the anterior end of the shoe and the first vertical line) disposed in a forefoot region of the sole structure, a convex second section (see “2” marked up bellow between the first and second vertical lines) disposed in a midfoot region of the sole structure, and a concave third section (see “3” marked up bellow between the posterior end of the shoe and the second vertical line) disposed in a heel region of the sole structure.
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Regarding claim [2. (Original) The article of footwear of Claim 1, wherein the concave first section defines a first nadir (N1) of the plate, the convex second section defines an upper apex (A1) of the plate, and the concave third section defines a second nadir (N2) of the plate aligned with the first nadir along a reference plane.]; see figure 137 showing, N1,N2 and A1 as claimed.
Regarding claim [3. (Original) The article of footwear of Claim 2, wherein the concave first section is asymmetrical about the first nadir.]; see figure 137 showing it having a different curvature in different areas of the concave first section and therefore is asymmetrical.
Regarding claim [4. (Original) The article of footwear of Claim 2, further comprising a cushion disposed between the first nadir of the plate and the cushioning element. and 5. (Original) The article of footwear of Claim 4, wherein the second side of the plate contacts the cushion at the first nadir of the plate.]; See cushion (midsole 26 which includes bladders 101.2,101.1, see figure 233).
Regarding claim 6, see bladders (e.g. 101.2, 101.1).
Regarding claim [7. (Original) The article of footwear of Claim 5, wherein a portion of the cushion is spaced apart from the second side of the plate between the first nadir and a posterior end of the sole structure.]; the cushion (e.g. bladder 101.2 has only the top surface touching the plate, the rest of the bladder is spaced from the plate.
Regarding claim [8. (Original) The article of footwear of Claim 1, wherein the cushioning element includes an upper cushioning member abutting the first side of the plate and a lower cushioning member abutting the second side of the plate.] ; at least see figure 233
Regarding claim [9. (Original) The article of footwear of Claim 8, wherein the upper cushioning member is in contact with the first side of the plate from an anterior end of the plate to a posterior end of the plate. ]; at least see figure 233.
Regarding claim [10. (Original) The article of footwear of Claim 9, wherein the lower cushioning member is spaced apart from the second side of the plate at the void.]; the cushion (e.g. bladder 101.2 has only the top surface touching the plate, the rest of the bladder is spaced from the plate.
Regarding claims 11-20, Lyden teaches an article of footwear (see figure 5 above) comprising:
an upper (23) ; and
a sole structure attached to the upper, the sole structure comprising:
a cushioning element (e.g. insole 31, midsole 26) defining a footbed of the sole structure; and
a plate (51; see marked-up figure 137 above) disposed within the cushioning element and including a first side opposing the footbed and an opposite second side, the first side including a concave first section (see claim 1 rejection above) disposed in a forefoot region of the sole structure and defining a first nadir (N1) of the plate, a convex second section (see claim 1 rejection above) disposed in a midfoot region of the sole structure and defining an upper apex (A1) of the plate, and a concave third section (see claim 1 rejection above) disposed in a heel region of the sole structure and defining a second nadir (N2) of the plate.
Regarding [12. (Original) The article of footwear of Claim 11, wherein a distance from the first nadir to an anterior end of the plate is greater than a distance from the second nadir to a posterior end of the plate.]; see figure 137.
Regarding claim [13. (Original) The article of footwear of Claim 12, wherein the concave first section is asymmetrical about the first nadir.]; see figure 137 showing it having a different curvature in different areas of the concave first section and therefore is asymmetrical.
Regarding claim [14. (Original) The article of footwear of Claim 12, further comprising a cushion disposed between the first nadir of the plate and the cushioning element. and 15. (Original) The article of footwear of Claim 14, wherein the second side of the plate contacts the cushion at the first nadir of the plate.]; See cushion (midsole 26 which includes bladders 101.1, 101.2, see figure 233).
Regarding claim 6, see bladders (e.g. 101.2, 101.1).
Regarding claim [17. (Original) The article of footwear of Claim 15, wherein a portion of the cushion is spaced apart from the second side of the plate between the first nadir and a posterior end of the sole structure.]; the cushion (e.g. bladder 101.2 has only the top surface touching the plate, the rest of the bladder is spaced from the plate.
Regarding claim [18. (Original) The article of footwear of Claim 11, wherein the cushioning element includes an upper cushioning member abutting the first side of the plate and a lower cushioning member abutting the second side of the plate.] ; at least see figure 233.
Regarding claim [19. (Original) The article of footwear of Claim 18, wherein the upper cushioning member is in contact with the first side of the plate from an anterior end of the plate to a posterior end of the plate. ]; at least see figure 233.
Regarding claim [20. (Original) The article of footwear of Claim 19, wherein the lower cushioning member is spaced apart from the second side of the plate at the void.]; the cushion (e.g. bladder 101.2 has only the top surface touching the plate, the rest of the bladder is spaced from the plate.
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 6 and 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Cobb ‘060 in view of US 2023/0127595 (Chang).
Cobb teaches an article of footwear as claimed (see details above) except for the cushion comprising a fluid-filled chamber.
Chang teaches an article of footwear wherein the lower cushion member (128), below the plate (110) comprising a fluid-filled chamber (108).
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 article of footwear as taught by Cobb with the cushion comprising (70) comprising a fluid-filled chamber, as taught by Chang, to facilitate providing improved cushioning characteristics for the wearer.
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
Prosecution Insights