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 with traverse of Species VII, shown in figure 11 in the reply filed on 7/8/26 is acknowledged. The traversal is on the ground(s) that the Examiner has not cited any prior art to support an allegation that all of the species are unified by the general inventive concept of Claim 1. This is not found persuasive because see below rejections of claim 1.
The requirement is still deemed proper and is therefore made FINAL.
Claims 4 and 5 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected species, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 7/8/26.
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.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 8 and 14-18 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 8 merely recites an inherent function of the structures recited in claim 1 from which it depends and does not include any further structural limitations rendering the claim vague, indefinite and confusing because it is not clear what further structural limitations applicant intends to encompass with this claim.
In claims 14-17 the use of the term “curvature segments” is confusing, vague, and indefinite because the figure only shows a “first curvature” in the direction of the top surface of the midsole comprising a medial, center and lateral segments and does not have a plurality of lateral or medial curvature segments as claimed. It is not clear what structural limitations applicant is intending to encompass with such language.
In claim 18 the phrase “in particularly…” is vague, confusing, and indefinite.
Claim Rejections - 35 USC § 102
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, 6-10, 12-15, 17, 18, and 20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Fechter (2006/0254087).
Fechter shows A sole for a running shoe, comprising a sole tip, a heel edge and a midsole (see figures 1, 2, and 17) having a base surface delimiting the midsole against a vertical direction of the midsole and a top surface delimiting the midsole in the vertical direction wherein the midsole comprises a heel region, a midfoot region and a forefoot region (see figures), and wherein the midsole comprises an elastic plate (see figures 2, 3, 14, and 17), wherein the elastic plate extends at least from the forefoot region into the midfoot region (see figures 14 and 17); wherein the elastic plate comprises a first curvature (see elements 8 and figure 14), the first curvature comprising:
a lateral-side curvature (lateral 8 or shown in figure 14) curved along the longitudinal direction of the midsole in the direction of the top surface of the midsole (see figures); and
a therefrom separated medial-side curvature (medial elements 8 or shown in figure 14) arranged offset in transverse direction and curved along the longitudinal direction of the midsole in the direction of the top surface of the midsole; and a plate section of the plate being in a transverse direction arranged between the medial-side curvature and the lateral-side curvature (see figures) as claimed.
In reference to claims 2, 6, figure 3 shows curved central plate portion as well as figure 14 shows multiple central curved portions.
In reference to claim 7, see figures 2, 3, 14, and 17.
In reference to claim 8, Fechter shows all the claimed structural limitations and therefore would inherently function as claimed.
In reference to claims 9 and 10, see figure 2 which shows a channel.
In reference to claims 12 and 13, since the curvature elements are shown over the entire surface of the plate, at least some of the elements are located as claimed.
In reference to claims 14, 15, 17, 18 and 20, Fechter shows a plurality of “segments” (see figures 14 and 17) inasmuch as the claims are understood.
Claim(s) 1-3, 6-15, 17, 18, and 20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Baum (2012/0246969).
Baum shows A sole for a running shoe, comprising a sole tip, a heel edge and a midsole (see paragraph [0016]) having a base surface delimiting the midsole against a vertical direction of the midsole and a top surface delimiting the midsole in the vertical direction wherein the midsole comprises a heel region, a midfoot region and a forefoot region (as is inherent in a shoe sole), and wherein the midsole comprises an elastic plate (10), wherein the elastic plate extends at least from the forefoot region into the midfoot region (see figures); wherein the elastic plate comprises a first curvature (at 39), the first curvature comprising:
a lateral-side curvature (at 39 on 42) curved along the longitudinal direction of the midsole in the direction of the top surface of the midsole (see figures); and
a therefrom separated medial-side curvature (at 39 on 44) arranged offset in transverse direction and curved along the longitudinal direction of the midsole in the direction of the top surface of the midsole; and a plate section (at 23 in figures) of the plate being in a transverse direction arranged between the medial-side curvature and the lateral-side curvature (see figures) as claimed.
In reference to claims 2, 3, and 6, figures 1 and 2 shows curved central plate portion as well as figures 1 and 2 shows multiple central curved portions.
In reference to claim 7, see figures 2, 3, 14, and 17.
In reference to claim 8, Baum shows all the claimed structural limitations and therefore would inherently function as claimed.
In reference to claims 9 and 10, the “midsole” shown in figures 1 and 2 has channels inasmuch as applicant has claimed and defined such.
In reference to claim 11, the shape shown in the figures is considered to be “bell shaped”.
In reference to claims 12 and 13, the curvature elements are located as claimed.
In reference to claims 14, 15, 17, 18, and 20, Baum shows a plurality of “segments” (see figures) inasmuch as the claims are understood.
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.
Claim(s) 16 and 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over either Fechter or Baum.
Fechter or Baum shows a sole substantially as claimed except for the exact width of the segments. It would have been obvious to one having ordinary skill in the art at the time the invention was made to make the segments of the claimed width, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Fechter or Baum shows a sole substantially as claimed except for the exact material for the plate. It would have been obvious to one having ordinary skill in the art at the time the invention was made to use a material with the claimed parameters, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
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.
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In order to avoid potential delays, Technology Center 3700 is encouraging FAXing of responses to Office Actions directly into the Center at (571)273-8300 (FORMAL FAXES ONLY). Please identify Examiner Marie Bays of Art Unit 3732 at the top of your cover sheet.
Any inquiry concerning the MERITS of this examination from the examiner should be directed to Marie Bays whose telephone number is (571) 272-4559. The examiner can normally be reached from Mon-Thurs 6-4. Alternatively if the Examiner cannot be reached, please contact the Examiners SPE Alissa Tompkins at 571-272-3425.
/MARIE D BAYS/Primary Examiner, Art Unit 3732
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