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/Restriction
At this time, no restriction is required. However, where only generic claims are first presented and prosecuted in an application in which no election of a single invention has been made, and applicant later presents species claims to more than one patentably distinct species of the invention, the examiner may require applicant to elect a single species. The practice of requiring election of species in cases with only generic claims of the unduly extensive and burdensome search type is set forth in MPEP § 808.01(a).
Claim(s) 1-20 is/are generic to the following disclosed patentably distinct species:
Species 1, a footwear as shown in FIGS 1-14
Species 2, a footwear as shown in FIGS 15-17
The species are independent or distinct because as disclosed the different species have mutually exclusive characteristics for each identified species such as the different shapes of the upper and lower cushions, relief, and receptacle (as shown in the FIGS and described in para. 0110), the gap 404 of Species 2, the structure of the outsole plate including a first, second, and third portion of Species 2.
Claim Rejections - 35 USC § 112(b)
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 2-5 and 12-15 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 2 recites the limitation "the first portion of the bottom side" in line 2. There is insufficient antecedent basis for this limitation in the claim. Claim 1 has support for “a first portion of a ground-engaging surface,” but not a first portion of bottom side.
Claim 12 recites the limitation "the first portion of the bottom side" in line 2. There is insufficient antecedent basis for this limitation in the claim. Claim 11 has support for “a first portion of a ground-engaging surface,” but not a first portion of bottom side.
Claims that depend from a rejected claim are also rejected.
All of the claims are examined as best understood.
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) 1-10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bartel (US 10441027 B2) in view of Amos (US 20180206599 A1).
As to claim 1, Bartel discloses a sole structure for an article of footwear (FIG 2), the sole structure comprising: a cushioning element (combination of cushioning member 250 and outsole 210) having a bottom side (210) including (i) an anterior portion defining a first portion of a ground-engaging surface extending from an anterior end of the sole structure to a mid-foot region of the sole structure (FIG 2; Examiner notes that the term "portion" is broad and merely means "a section or quantity within a larger thing; a part of a whole" (Defn. No. 1 of "American Heritage® Dictionary of the English Language, Fifth Edition" entry via TheFreeDictionary.com)) and (ii) a second portion offset from the first portion from the mid-foot region to a posterior end of the sole structure (FIG 2; Examiner notes that the term "portion" is broad and merely means "a section or quantity within a larger thing; a part of a whole" (Defn. No. 1 of "American Heritage® Dictionary of the English Language, Fifth Edition" entry via TheFreeDictionary.com));
a support plate embedded within the cushioning element and including a planar platform extending from a first platform end to a second platform end (plate 300; FIG 2 shows 300 is a planar platform extending between ends 301 and 302), a first arcuate segment extending in a first direction from the first platform end to a first distal end (one of the lateral or medial edges; FIG 2 shows both edges are arcuate), and a second arcuate segment extending in an opposite second direction from the second platform end to a second distal end (the other of the lateral or medial edges; FIG 2 shows both edges are arcuate);a cushioning arrangement including one or more compressible elements disposed between the support plate and the cushioning element (fluid-filled bladder 400; 400 is capable of being compressed, FIG 2 shows 400 is between 300 and 250/210).
Bartel does not disclose one or more outsole plates attached to the bottom side of the cushioning element.
Amos teaches a similar sole structure (204) for a footwear (200) including one or more outsole plates (230 and/ or 240) attached to the bottom side of the cushioning element (230 and/ or 240 are attached to the bottom side of 220 as described in para. 0034).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to provide the bottom side of the cushioning elements with one or more outsole plates in order to provide “additional support and/or wear resistance during the foot-strike phase of a typical running/jogging step cycle (at least for some runners)” (Amos para. 0038), to reinforce higher wear or stress areas (Amos para. 0036), and to support the forefoot area (Bartel para. 0041).
As to claim 2, Bartel as modified discloses the sole structure of Claim 1, wherein the one or more outsole plates includes an anterior outsole plate attached to the first portion of the bottom side (Amos 240).
As to claim 3, Bartel as modified discloses the sole structure of Claim 2, wherein the anterior outsole plate extends from a first end at the anterior end of the sole structure to a second end at the mid-foot region (Amos 240 in FIG 2B).
As to claim 4, Bartel as modified discloses the sole structure of Claim 2, wherein the anterior outsole plate includes a first leg extending along a medial side of the sole structure from the anterior end to the mid-foot region and a second leg extending along a lateral side of the sole structure from the anterior end to the mid- foot region (Amos 240 in FIGS 2B, 3A, and 3B).
As to claim 5, Bartel as modified discloses the sole structure of Claim 4, wherein the first leg and the second leg are connected at the anterior end and disconnected at the mid-foot region (Amos 240 in FIGS 2B, 3A, and 3B).
As to claim 6, Bartel as modified discloses the sole structure of Claim 1, wherein the one or more outsole plates includes a posterior outsole plate attached to the second portion of the bottom side (Amos 230 in FIG 2B).
As to claim 7, Bartel as modified discloses the sole structure of Claim 6, wherein the posterior outsole plate extends from a first end in a heel region of the sole structure to a second end at the posterior end of the sole structure (Amos 230 in FIG 2B).
As to claim 8, Bartel as modified discloses the sole structure of Claim 7, wherein the posterior outsole plate extends along an arcuate path from the first end on a lateral side of the sole structure to the second end on a medial side of the sole structure (a portion of Amos FIG 2B is annotated below to show the arcuate path).
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As to claim 9, Bartel does not disclose the sole structure of Claim 1, wherein each of the one or more outsole plates includes a material having a Young's modulus of at least 10 gigapascals.
Amos is silent as to the properties of the outsole plate material, but Amos para. 0037 does disclose 230 “may be constructed from a sturdier, more wear resistant material than the midsole component 220, such as a PEBAX® plastic material (available from Arkema France Corporation), a thermoplastic polyurethane material, a carbon fiber reinforced plastic material, a glass fiber reinforced plastic material, or the like.”
Applicant discloses the outsole plates 240 and 242 “may include polymeric materials or may be formed using composite materials, similar to the methods disclosed herein with respect to the support plate 110” (para. 0102), fiber-reinforced plastic material (“applying a resin after affixing the strands of fibers to the substrate and/or to each other” in para. 0074), and “unidirectional tape including at least one of carbon fibers, boron fibers, glass fibers, and polymeric fibers” (para. 0074).
Therefore, Amos and Applicant employ similar materials for the outsole plates, and one of ordinary skill would expect the similar materials to have similar properties.
It would have been obvious to one having ordinary skill in the art at the time the invention was filed to provide the one or more outsole plates includes a material having a Young's modulus of at least 10 gigapascals, since it is 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. See MPEP 2144.07.
Furthermore, it would have been obvious to one having ordinary skill in the art at the time the invention was filed to provide the one or more outsole plates includes a material having a Young's modulus of at least 10 gigapascals in order to provide the desired degree of “additional support and/or wear resistance during the foot-strike phase of a typical running/jogging step cycle (at least for some runners)” (Amos para. 0038), reinforcement in higher wear or stress areas (Amos para. 0036), and support in the forefoot area (Bartel para. 0041). For example, one of ordinary skill would recognize that the material should be hard enough to provide support, wear resistance, and reinforcement, while not being so hard as to inhibit the wearer’s range of motion during walking and running.
As to claim 10, Bartel discloses the sole structure of Claim 1, wherein the support plate includes a material having a Young's modulus of at least 70 gigapascals (Bartel col 27 line 20-30).
Claim(s) 11-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bartel (US 10441027 B2) in view of Connell (US 10856611 B2) and Amos (US 20180206599 A1).
As to claim 11, Bartel discloses a sole structure for an article of footwear (FIG 2), the sole structure comprising: a cushioning element (combination of cushioning member 250 and outsole 210) having a bottom side (210) including (i) an anterior portion defining a first portion of a ground-engaging surface extending from an anterior end of the sole structure to a mid-foot region of the sole structure (FIG 2; Examiner notes that the term "portion" is broad and merely means "a section or quantity within a larger thing; a part of a whole" (Defn. No. 1 of "American Heritage® Dictionary of the English Language, Fifth Edition" entry via TheFreeDictionary.com)) and (ii) a second portion offset from the first portion from the mid-foot region to a posterior end of the sole structure (FIG 2; Examiner notes that the term "portion" is broad and merely means "a section or quantity within a larger thing; a part of a whole" (Defn. No. 1 of "American Heritage® Dictionary of the English Language, Fifth Edition" entry via TheFreeDictionary.com));
a support plate embedded within the cushioning element (plate 300);
Bartel does not disclose a cushioning arrangement including a first cushioning structure disposed adjacent to a medial side of the sole structure and a second cushioning structure disposed adjacent to a lateral side of the sole structure, each of the first cushioning structure and the second cushioning structure including an upper bladder and a lower bladder.
Bartel does disclose a cushioning arrangement including a first cushioning structure a second cushioning structure (fluid-filled bladder 400; col 28 line 45-50 discloses “one or more fluid-filled bladders 400” which corresponds toa first and second cushioning structure), but does not expressly disclose the structural relationship between the two cushioning structures.
Connell teaches a similar sole structure for a footwear including a cushioning arrangement (40) including a first cushioning structure disposed adjacent to a medial side of the sole structure (64 in FIG 1) and a second cushioning structure disposed adjacent to a lateral side of the sole structure (66 in FIG 1), each of the first cushioning structure and the second cushioning structure including an upper bladder (68 and 88 in FIG 2) and a lower bladder (70 and 90 in FIG 2).
It would have been obvious to one having ordinary skill in the art at the time the invention was filed to duplicate Bartel’s bladders to have the same number of bladders claimed, since mere duplication of the essential working parts of a device involves only routine skill in the art. See MPEP 2144.04 (VI)(B).
Furthermore, It would have been obvious to one of ordinary skill in the art at the time the invention was filed to provide a cushioning arrangement including a first cushioning structure disposed adjacent to a medial side of the sole structure and a second cushioning structure disposed adjacent to a lateral side of the sole structure, each of the first cushioning structure and the second cushioning structure including an upper bladder and a lower bladder in order to provide the desired degree of cushioning in the desired areas of the shoe, to cushion the wearer’s foot against expected impacts from the intended end use.
Bartel does not disclose one or more outsole plates attached to the bottom side of the cushioning element.
Amos teaches a similar sole structure (204) for a footwear (200) including one or more outsole plates (230 and/ or 240) attached to the bottom side of the cushioning element (230 and/ or 240 are attached to the bottom side of 220 as described in para. 0034).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to provide the bottom side of the cushioning elements with one or more outsole plates in order to provide “additional support and/or wear resistance during the foot-strike phase of a typical running/jogging step cycle (at least for some runners)” (Amos para. 0038), to reinforce higher wear or stress areas (Amos para. 0036), and to support the forefoot area (Bartel para. 0041).
As to claim 12, Bartel as modified discloses the sole structure of Claim 11, wherein the one or more outsole plates includes an anterior outsole plate attached to the first portion of the bottom side (Amos 240).
As to claim 13, Bartel as modified discloses the sole structure of Claim 12, wherein the anterior outsole plate extends from a first end at the anterior end of the sole structure to a second end at the mid-foot region (Amos 240 in FIG 2B).
As to claim 14, Bartel as modified discloses the sole structure of Claim 12, wherein the anterior outsole plate includes a first leg extending along a medial side of the sole structure from the anterior end to the mid-foot region and a second leg extending along a lateral side of the sole structure from the anterior end to the mid- foot region (Amos 240 in FIGS 2B, 3A, and 3B).
As to claim 15, Bartel as modified discloses the sole structure of Claim 14, wherein the first leg and the second leg are connected at the anterior end and disconnected at the mid-foot region (Amos 240 in FIGS 2B, 3A, and 3B).
As to claim 16, Bartel as modified discloses the sole structure of Claim 11, wherein the one or more outsole plates includes a posterior outsole plate attached to the second portion of the bottom side (Amos 230 in FIG 2B).
As to claim 17, Bartel as modified discloses the sole structure of Claim 16, wherein the posterior outsole plate extends from a first end in a heel region of the sole structure to a second end at the posterior end of the sole structure (Amos 230 in FIG 2B).
As to claim 18, Bartel as modified discloses the sole structure of Claim 17, wherein the posterior outsole plate extends along an arcuate path from the first end on a lateral side of the sole structure to the second end on a medial side of the sole structure (a portion of Amos FIG 2B is annotated below to show the arcuate path).
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As to claim 19, Bartel as modified discloses the sole structure of Claim 11, wherein each of the one or more outsole plates includes a plurality of traction elements (Amos 232).
As to claim 20, Bartel as modified discloses the sole structure of Claim 11, wherein the support plate includes a material having a Young's modulus of at least 70 gigapascals (Bartel col 27 line 20-30).
Bartel as modified by Amos does not disclose the one or more outsole plates include a material having a Young's modulus of at least 70 gigapascals.
Amos is silent as to the properties of the outsole plate material, but Amos para. 0037 does disclose 230 “may be constructed from a sturdier, more wear resistant material than the midsole component 220, such as a PEBAX® plastic material (available from Arkema France Corporation), a thermoplastic polyurethane material, a carbon fiber reinforced plastic material, a glass fiber reinforced plastic material, or the like.”
Applicant discloses the outsole plates 240 and 242 “may include polymeric materials or may be formed using composite materials, similar to the methods disclosed herein with respect to the support plate 110” (para. 0102), fiber-reinforced plastic material (“applying a resin after affixing the strands of fibers to the substrate and/or to each other” in para. 0074), and “unidirectional tape including at least one of carbon fibers, boron fibers, glass fibers, and polymeric fibers” (para. 0074).
Therefore, Amos and Applicant employ similar materials for the outsole plates, and one of ordinary skill would expect the similar materials to have similar properties.
It would have been obvious to one having ordinary skill in the art at the time the invention was filed to provide the one or more outsole plates includes a material having a Young's modulus of at least 70 gigapascals, since it is 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. See MPEP 2144.07.
Furthermore, it would have been obvious to one having ordinary skill in the art at the time the invention was filed to provide the one or more outsole plates includes a material having a Young's modulus of at least 70 gigapascals in order to provide the desired degree of “additional support and/or wear resistance during the foot-strike phase of a typical running/jogging step cycle (at least for some runners)” (Amos para. 0038), reinforcement in higher wear or stress areas (Amos para. 0036), and support in the forefoot area (Bartel para. 0041). For example, one of ordinary skill would recognize that the material should be hard enough to provide support, wear resistance, and reinforcement, while not being so hard as to inhibit the wearer’s range of motion during walking and running.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SALLY HADEN whose telephone number is (571)272-6731. The examiner can normally be reached M-F 9-5.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Clinton Ostrup can be reached at 571-272-5559. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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SALLY HADEN
Primary Examiner
Art Unit 3732
/SALLY HADEN/ Primary Examiner, Art Unit 3732
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