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 .
Election/Restrictions
Applicant’s election without traverse of Species 8: Fig.38-41 in the reply filed on June 11, 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 (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.
1. Claim(s) 11-13, 15, and 19-20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Peyton (US 2012/0174432).
Regarding Claim 11, Bruce discloses a sole structure for an article of footwear, the sole structure comprising: a midsole (40) including a forefoot region and a heel region (as seen in Fig.11A); a plate (50) including a first plate surface (51) attached to the midsole and a second plate surface (53) disposed on an opposite side of the plate than the first plate surface, the second plate surface being convex (as seen in Fig.11A, surface 53 is convex in the toe region as the toe region of 50 is convex in shape); a first cushion (medial forefoot 64) including a first cushion surface (i.e. top surface of 64) attached to the convex second plate surface and a second cushion surface (i.e. bottom surface of 64) disposed on an opposite side of the first cushion than the first cushion surface, the first cushion disposed in the forefoot region and disposed proximate to one of a medial side of the midsole and a lateral side of the midsole (as seen in Fig.11A); and an outsole (70) including a first outsole surface (i.e. top surface of 70) opposing the second cushion surface and a second outsole surface (i.e. bottom surface of 70) defining a ground-contacting surface and disposed on an opposite side of the outsole than the first outsole surface (as seen in Fig.11A).
Regarding Claim 12, Peyton discloses a sole structure of Claim 11, further comprising a second cushion (i.e. lateral forefoot 64) including a third cushion surface (i.e. top surface of 64) attached to the convex second plate surface and a fourth cushion surface (i.e. bottom surface of 64) disposed on an opposite side of the second cushion than the third cushion surface, the second cushion disposed in the forefoot region and disposed proximate to the other of the medial side of the midsole and the lateral side of the midsole (as seen in Fig.11A).
Regarding Claim 13, Peyton discloses a sole structure of Claim 12, wherein at least one of the first cushion and the second cushion comprises a fluid-filled chamber (para.21 & 31).
Regarding Claim 15, Peyton discloses a sole structure of Claim 12, wherein the first cushion (i.e. medial forefoot 64) is aligned with the second cushion (i.e. lateral forefoot 64) in a direction extending between the medial side of the midsole and the lateral side of the midsole (as seen in Fig.11A).
Regarding Claim 19, Peyton discloses a sole structure of Claim 11, wherein the midsole (40) comprises a polymer foam (para.26).
Regarding Claim 20, Peyton discloses a sole structure of Claim 11, wherein the first cushion (i.e. medial forefoot 64) includes a columnar shape (as seen in Fig.11A & evidenced by Fig.10G; the cross-section of medial forefoot 64 has a columnar shape, inasmuch as has been claimed by Applicant).
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.
2. Claim(s) 1-3 and 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bruce (US 2014/0075779).
Regarding Claim 1, Bruce discloses a sole structure for an article of footwear, the sole structure comprising: a midsole (140) including a forefoot region and a heel region (as seen in Fig.1A); a plate (150) including a first plate surface (150S) attached to the midsole and a second plate surface (i.e. bottom of 150) disposed on an opposite side of the plate than the first plate surface; a first cushion (top 120) including a first cushion surface (120S) attached to the second plate surface and a second cushion surface (i.e. bottom surface of 120) disposed on an opposite side of the first cushion than the first cushion surface, the first cushion disposed proximate to one of a medial side of the midsole and a lateral side of the midsole (as seen in Fig.1A & 1E); a second cushion (bottom 120) including a third cushion surface (120S) attached to the second cushion surface of the first cushion, and a fourth cushion surface (i.e. bottom surface of 120) disposed on an opposite side of the second cushion than the third cushion surface; and an outsole (110) including a first outsole surface (110b) opposing the fourth cushion surface and a second outsole surface (i.e. bottom surface of 110) defining a ground-contacting surface and disposed on an opposite side of the outsole than the first outsole surface (as seen in Fig.1E). Bruce does not specifically teach the first cushion disposed in the forefoot region in Fig. 1A & E. However, Bruce does show a cushion (130S) being confined to the forefoot region of the sole structure (as seen in Fig.1E), and further teaches that vertically stacked cushions may be used in any region of the sole structure as desired (para.91).
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 provided the first cushion
of Bruce in the forefoot region, as also taught by Bruce, in order to provide the desired
level of cushioning to a user's foot during use of the shoe. Further, it has been held that
rearranging parts of an invention involves only routine skill in the art. See MPEP
2144.04 VI.
Regarding Claim 2, Bruce discloses a sole structure of Claim 1, wherein a portion of the midsole (140 between 120S and the other of the medial or lateral side) extends between the first cushion and the other of the medial side of the midsole and the lateral side of the midsole (as seen in Fig.1A & 1B).
Regarding Claim 3, Bruce discloses a sole structure of Claim 1, wherein at least one of the first cushion and the second cushion comprises a fluid-filled chamber (para.51).
Regarding Claim 5, Bruce discloses a sole structure of Claim 1, wherein the midsole comprises a polymer foam (para.48).
3. Claim(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bruce (US 2014/0075779) in view of Cook (US 2009/0100705).
Regarding Claim 4, Bruce discloses a sole structure of Claim 3, wherein the fluid-filled chamber is pressurized (para.29). Bruce does not disclose wherein the fluid-filled chamber is pressurized within a range of 15-30 pounds per square inch. However, Cook teaches a shoe sole having a fluid filled chamber (40a-40d) which is pressurized within a range of 15-30 pounds per square inch (para.61).
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 modified the pressure of
Bruce's fluid filled chambers to be within a range of 15-30 pounds per square inch, as
taught by Cook, in order to provide the optimum level of support and cushioning to the
foot of a user.
4. Claim(s) 6-10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bruce (US 2014/0075779) in view of Peyton (US 2012/0174432).
Regarding Claims 6 and 10, Bruce discloses the invention substantially as claimed above. Bruce does not disclose a third cushion spaced apart from the first cushion and the second cushion, the third cushion including a fifth cushion surface attached to the second plate surface and a sixth cushion surface disposed on an opposite side of the third cushion than the fifth cushion surface; further comprising a fourth cushion including a seventh cushion surface attached to the sixth cushion surface of the third cushion and an eighth cushion surface disposed on an opposite side of the fourth cushion than the seventh cushion surface and opposing the first outsole surface.
However, Peyton teaches a sole structure having two cushions (61 & 62) disposed in the forefoot region and laterally adjacent to one another across a width of the sole structure between a medial side of the sole structure and a lateral side of the sole structure (as seen in Fig.4).
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 modified the cushion
arrangement of Bruce to include a second set of cushions positioned laterally from the
first set, as taught by Peyton, in order to provide customized medial and lateral stability
and cushioning to the user's foot when wearing the footwear. When in combination,
Bruce and Peyton teach the third cushion (i.e. a second top 120 of Bruce as modified by
Peyton) including a fifth cushion surface (i.e. top surface of second top 120 of Bruce)
attached to the second plate surface (of Bruce) and a sixth cushion surface (i.e. bottom
surface of second top 120 of Bruce) disposed on an opposite side of the third cushion
than the fifth cushion surface; a fourth cushion (i.e. a second bottom 120 of Bruce as
modified by Peyton) including a seventh cushion surface (i.e. top surface of second bottom 120 of Bruce) opposing the sixth cushion surface of the third cushion and an
eighth cushion surface (i.e. bottom surface of second bottom 120 of Bruce) disposed on
an opposite side of the fourth cushion than the seventh cushion surface and opposing
the first outsole surface (as evidenced by Fig.4 of Peyton and Fig. 1E of Bruce).
Regarding Claim 7, When in combination, Bruce and Peyton teach a sole structure of Claim 6, wherein the third cushion is disposed proximate to the other of the medial side of the midsole and the lateral side of the midsole (Bruce: Fig.1A & Peyton: Fig.11A).
Regarding Claim 8, When in combination, Bruce and Peyton teach a sole structure of Claim 7, wherein the third cushion is aligned with the first cushion and the second cushion in a direction extending between the medial side of the midsole and the lateral side of the midsole (Bruce: Fig.1A & Peyton: Fig.11A).
Regarding Claim 9, Bruce further discloses a sole structure of Claim 8, wherein the third cushion includes a columnar shape (as seen in Fig.1E, the cross-section of 120S has a columnar shape, inasmuch as has been claimed by Applicant).
5. Claim(s) 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Peyton (US 2012/0174432) in view of Cook (US 2009/0100705).
Regarding Claim 14, Peyton discloses a sole structure of Claim 13, wherein the fluid-filled chamber is pressurized (para.21 & 31). Peyton does not disclose wherein the fluid-filled chamber is pressurized within a range of 15-30 pounds per square inch. However, Cook teaches a shoe sole having a fluid filled chamber (40a-40d) which is pressurized within a range of 15-30 pounds per square inch (para.61).
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 modified the pressure of
Peyton’s fluid filled chambers to be within a range of 15-30 pounds per square inch, as
taught by Cook, in order to provide the optimum level of support and cushioning to the
foot of a user.
6. Claim(s) 16-18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Peyton (US 2012/0174432) in view of Bruce (US 2014/0075779).
Regarding Claim 16, Peyton discloses the invention substantially as claimed above. Peyton does not disclose a third cushion aligned with the first cushion and a fourth cushion aligned with the second cushion. However, Bruce teaches a cushioning arrangement having a first cushion (top 120) and a second cushion (bottom 120) attached to the first cushion and disposed between the first cushion and a ground-contacting surface (110) of the sole structure (as seen in Fig. 1A & E; para.51).
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 modified the cushioning
arrangement of Peyton to include a third cushion aligned with the first cushion and a
fourth cushion aligned with the second cushion, as taught by Bruce, in order to provide
a shoe sole with enhanced impact attenuation that delivers optimum cushioning to a
user's foot.
Regarding Claim 17, When in combination, Peyton and Bruce teach a sole structure of Claim 16, wherein the third cushion is disposed between the second cushion surface and the first outsole surface and the fourth cushion is disposed between the fourth cushion surface and the first outsole surface (as evidenced by Fig.4 of Peyton & Fig.1E of Bruce).
Regarding Claim 18, Modified Peyton discloses a sole structure of Claim 17, wherein at least one of the first cushion, the second cushion, the third cushion, and the fourth cushion comprises a fluid-filled chamber (para.21 & 31).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Khoa 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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/MEGAN E LYNCH/Primary Examiner, Art Unit 3732
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