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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 02-12-2026 and 06-15-2026 are acknowledged. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
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.
Claim 4 is 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 4 is rejected because it recites limitation “the first pre-twist angle and the second pre-twist angle” in lines 1-2. There is insufficient antecedent basis for this limitation in the claim.
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.
Claim(s) 1-4, 6, 8-12, and 14-19 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Gross (2021/0186151).
Regarding claim 1, Gross discloses a sole structure (figs 1-16) for an article of footwear, the sole structure comprising:
a first support structure disposed in a first region of the sole structure (fig 3, the toe area) and including a plurality of first struts (i.e. legs, member 30 on the top right) extending between a first base (member 28) and a first platform (member 26), the first struts being oriented at a first strut angle relative to a plane defined by the first base (figs 3-11); and
a second support structure disposed in a second region (fig 3, the heel area) of the sole structure and including a plurality of second struts (i.e. legs, member 30 on the bottom left) extending between a second base (member 28) and a second platform (member 26), the second struts oriented at a second strut angle relative to a plane defined by the second base (figs 3-11), and the first strut angle being different from the second strut angle to provide a different load-to-displacement ratio in the first region than in the second region (fig 9, para 0061 and 0064).
Regarding claim 2, Gross discloses the first struts have a first strut thickness and the second struts have a second strut thickness that is different from the first strut thickness (para 0064).
Regarding claim 3, Gross discloses the first platform is rotated relative to the first base about a first vertical axis to define a first pre-twist angle and the second platform is rotated relative to the second base about a second vertical axis to define a second pre-twist angle that is different from the first pre-twist angle (para 0063).
Regarding claim 4, Gross discloses the first pre-twist angle and the second pre-twist angle are between 0 degrees and 95 degrees (para 0063).
Regarding claim 6, Gross discloses the first support structure is formed of a first material and the second support structure is formed of a second material different from the first material (para 0069).
Regarding claim 8, Gross discloses a sole structure (figs 1-16) for an article of footwear, the sole structure comprising:
a first support structure disposed in a first region of the sole structure (fig, the toe area) and including a plurality of first struts (i.e. legs, member 30 on the top right) connecting a first base (member 28) and a first platform (member 26), the first platform being rotated relative to the first base about a first vertical axis to define a first pre-twist angle such that the first struts have a first twisted orientation (fig 9); and
a second support structure disposed in a second region (fig 3, the heel area) of the sole structure and including a plurality of second struts (i.e. legs, member 30 on the bottom left) extending between a second base (member 28) and a second platform (member 26), the second struts oriented at a second strut angle relative to a plane defined by the second base (figs 3-11), and the first strut angle being different from the second strut angle to provide a different load-to-displacement ratio in the first region than in the second region (fig 9, para 0061 and 0064).
Regarding claim 9, Gross discloses the first pre-twist angle and the second pre-twist angle are between 0 degrees and 95 degrees (para 0063).
Regarding claim 10, Gross discloses the first struts have a first strut thickness and the second struts have a second strut thickness that is different from the first strut thickness (para 0063).
Regarding claim 11, Gross discloses the plurality of first struts are oriented at a first strut angle relative to the first base, and wherein the plurality of second struts are oriented at a second strut angle relative to the second base, the first strut angle being different from the second strut angle (figs 3-9).
Regarding claim 12, Gross discloses the first support structure is formed of a first material and the second support structure is formed of a second material different from the first material (para 0069).
Regarding claim 14, Gross discloses a sole structure (figs 1-16) for an article of footwear, the sole structure comprising:
a first support structure disposed in a first region of the sole structure (fig 3, the toe area) and including a plurality of first struts (i.e. legs, member 30 on the top right) extending between a first base (member 28) and a first platform (member 26), the first struts each defining a first strut thickness (para 0063); and
a second support structure disposed in a second region (fig 3, the heel area) of the sole structure and including a plurality of second struts (i.e. legs, member 30 on the bottom left) extending between a second base (member 28) and a second platform (member 26), the second struts each defining a second strut thickness that is different from the first strut thickness (para 0063).
Regarding claim 15, Gross discloses the first support structure has a different load-to-displacement ratio than the second support structure (fig 9, para 0061 and 0064).
Regarding claim 16, Gross discloses the first plurality of struts are oriented at a first strut angle relative to the first base, and wherein the second plurality of struts are oriented at a second strut angle relative to the second base, the first strut angle being different from the second strut angle (para 0061 and 0064).
Regarding claim 17, Gross discloses the first plurality of struts have a substantially cylindrical shape and the first strut thickness corresponds to a diameter of the first plurality of struts (fig 5).
Regarding claim 18, Gross discloses the first support structure is formed of a first material and the second support structure is formed of a second material different from the first material (para 0069).
Regarding claim 19, Gross discloses the first support structure is formed of a first material and the second support structure is formed of a second material different from the first material (para 0069).
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.
Claim(s) 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gross (2021/0186151) as applied to claim 1 above, and further in view of Derderian et al. (4,535,553).
Regarding claim 5, Gross teaches all limitations except the first struts and the second struts have non-cylindrical cross-sectional profiles.
Derderian teaches a sole structure having the first struts and the second struts have non-cylindrical cross-sectional profiles (fig 6).
It would have been obvious to one of ordinary skill in the art before the effective filling date of the claim invention to modify the structure of Gross by using the struts profiles of Derderian in order to enhance lateral stability at a sacrifice to cushioning.
Claim(s) 7, 13, and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gross (2021/0186151)
Regarding claims 7, 13, and 20, Gross teaches all limitations except the first support structure and the second support structure are configured to deflect under a vertical compressive load such that a reaction force of the first support structure remains between 60 Newtons and 80 Newtons across a displacement range of 4 mm to 10 mm.
However, Gross’s sole having the same structure (as claim 1) and same material (thermoplastic polyurethane or TPEs); therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date to understand that the support structures must have the same compressive load, reaction force, and displacement range.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Application 19/538,454. Although the claims at issue are not identical, they are not patentably distinct from each other because both applications claim essentially the same elements such as support structures with struts wherein the struts are different.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Application 19/538,406. Although the claims at issue are not identical, they are not patentably distinct from each other because both applications claim essentially the same elements such as support structures with struts wherein the struts are different.
Conclusion
The prior art made of record and not relied upon, is listed on the attached PTO-892.
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BAO-THIEU L. NGUYEN
Primary Examiner
Art Unit 3732
/BAO-THIEU L NGUYEN/Primary Examiner, Art Unit 3732
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