SHOE

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 . Status of the Claims This Office Action is in response to claims 1-6, filed May 20, 2026, which are pending in this application. An action on the merits follows. 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 and 3-6 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 6-10 of copending Application No. 18/854,871 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other as seen below. This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented. U.S. 19/682,729 U.S. 18/854,871 1. A shoe comprising a sole and an upper, wherein the upper includes: a topline portion configured to allow a wearer of the shoe to put a foot of the wearer in and out of the shoe; a slit portion that defines an opening extending frontward in a foot length direction from the topline portion; a peripheral edge portion connected to the sole; and a forefoot portion covering portion configured to cover a forefoot portion of the wearer of the shoe, the forefoot portion covering portion includes: an inner functional portion formed on an inner side of the forefoot portion, in a foot width direction and between the slit portion and the peripheral edge portion, the inner functional portion has: a plurality of inner high rigidity portions arranged so as to be aligned in the foot length direction, each of the plurality of inner high rigidity portions having a shape extending in the foot width direction; and a plurality of inner low rigidity portions arranged between the inner high rigidity portions and adjacent to each other in the foot length direction, each of the plurality of inner low rigidity portions having a bending rigidity lower than a bending rigidity of each of the plurality of inner high rigidity portions and having a shape extending in the foot width direction, the sole includes: a midsole configured to support the foot of the wearer; and an outer reinforcing portion provided on a side part of the midsole on the outer side in the foot width direction and made of a material having a hardness higher than a hardness of a material of the midsole, and the outer reinforcing portion includes: a rear reinforcing portion configured to be located more rearward in the foot length direction than an extension line of a metatarsophalangeal (MP) joint of the foot of the wearer; a front reinforcing portion configured to be located more frontward in the foot length direction than the extension line of the MP joint of the foot of the wearer; and a bend allowing portion configured to be located on the extension line of the MP joint of the foot of the wearer and coupling the rear reinforcing portion to the front reinforcing portion, the bend allowing portion allowing the front reinforcing portion to bend with respect to the rear reinforcing portion; wherein ends on the inner side in the foot width direction of the inner low rigidity portions are disposed at a boundary between the inner low rigidity portions and the peripheral edge portion. 1. A shoe comprising a sole and an upper, wherein the upper includes: a topline portion configured to allow a wearer of the shoe to put a foot of the wearer in and out of the shoe; a slit portion that defines an opening extending frontward in a foot length direction from the topline portion; a peripheral edge portion connected to the sole; and a forefoot portion covering portion that covers a forefoot portion of the wearer of the shoe, the forefoot portion covering portion includes: an inner functional portion formed on an inner side of the forefoot portion, in a foot width direction and between the slit portion and the peripheral edge portion; and an outer functional portion formed on an outer side of the forefoot portion, in the foot width direction and between the slit portion and the peripheral edge portion, the inner functional portion has: a plurality of inner high rigidity portions arranged so as to be aligned in the foot length direction, each of the plurality of inner high rigidity portions having a shape extending in the foot width direction; and a plurality of inner low rigidity portions arranged between the inner high rigidity portions and adjacent to each other in the foot length direction, each of the plurality of inner low rigidity portions having a bending rigidity lower than a bending rigidity of each of the plurality of inner high rigidity portions and having a shape extending in the foot width direction, the outer functional portion has: a plurality of outer high rigidity portions arranged so as to be aligned in the foot length direction, each of the plurality of outer high rigidity portions having a shape extending in the foot width direction; and a plurality of outer low rigidity portions arranged between the outer high rigidity portions and adjacent to each other in the foot length direction, each of the plurality of outer low rigidity portions having a bending rigidity lower than a bending rigidity of each of the plurality of outer high rigidity portions and having a shape extending in the foot width direction, a length between ends, on an outer side in the foot width direction, of the outer low rigidity portions adjacent to each other in the foot length direction is longer than a length between ends, on an inner side in the foot width direction, of the inner low rigidity portions adjacent to each other in the foot length direction, and the ends, on the outer side in the foot width direction, of the outer low rigidity portions are disposed at a boundary between the outer low rigidity portions and the peripheral edge portion, and the ends, on the inner side in the foot width direction, of the inner low rigidity portions are disposed at a boundary between the inner low rigidity portions and the peripheral edge portion. 6. The shoe according to claim 1, wherein the sole includes: a midsole configured to support the foot of the wearer; and an outer reinforcing portion provided on a side part of the midsole on the outer side in the foot width direction and made of a material having a hardness higher than a hardness of a material of the midsole, and the outer reinforcing portion has: a rear reinforcing portion configured to be located more rearward in the foot length direction than an extension line of a metatarsophalangeal (MP) joint of the foot of the wearer; a front reinforcing portion configured to be located more frontward in the foot length direction than the extension line of the MP joint of the foot of the wearer; and a bend allowing portion configured to be located on the extension line of the MP joint of the foot of the wearer and coupling the rear reinforcing portion to the front reinforcing portion, the bend allowing portion allowing the front reinforcing portion to bend with respect to the rear reinforcing portion. 3. The shoe according to claim 1, wherein the sole further includes an outsole arranged on a lower surface side of the midsole. 7. The shoe according to claim 6, wherein the sole further includes an outsole arranged on a lower surface side of the midsole. 4. The shoe according to claim 3, wherein the outsole has: an inner ground contact portion including an inner edge portion configured to overlap with a rearfoot portion of the wearer in a thickness direction of the shoe and is located on the inner side in the foot width direction, the inner ground contact portion having a shape extending in the foot length direction; an outer ground contact portion including an outer edge portion configured to overlap with the rearfoot portion of the wearer in the thickness direction and is located on the outer side in the foot width direction, the outer ground contact portion having a shape extending in the foot length direction; and an inner/outer separation groove formed between the inner ground contact portion and the outer ground contact portion, to separate the inner ground contact portion and the outer ground contact portion, and a front end of the inner/outer separation groove in the foot length direction is formed at a position overlapping with the bend allowing portion in the thickness direction. 8. The shoe according to claim 7, wherein the outsole has: an inner ground contact portion including an inner edge portion configured to overlap with a rearfoot portion of the wearer in a thickness direction of the shoe and is located on the inner side in the foot width direction, the inner ground contact portion having a shape extending in the foot length direction; an outer ground contact portion including an outer edge portion configured to overlap with the rearfoot portion of the wearer in the thickness direction and is located on the outer side in the foot width direction, the outer ground contact portion having a shape extending in the foot length direction; and an inner/outer separation groove formed between the inner ground contact portion and the outer ground contact portion, to separate the inner ground contact portion and the outer ground contact portion, and a front end of the inner/outer separation groove in the foot length direction is formed at a position overlapping with the bend allowing portion in the thickness direction. The shoe according to claim 3, wherein the outsole includes a front ground contact portion overlapping with the forefoot portion covering portion in a thickness direction of the shoe, a plurality of bend guiding grooves arranged so as to be aligned in the foot length direction are formed in the front ground contact portion, each of the plurality of bend guiding grooves having a shape extending continuously or intermittently from an inner edge portion to an outer edge portion in the foot width direction, and a length between ends, on the outer side in the foot width direction, of the bend guiding grooves adjacent to each other in the foot length direction is longer than a length between ends, on the inner side in the foot width direction, of the bend guiding grooves adjacent to each other in the foot length direction. 9. The shoe according to claim 7, wherein the outsole includes a front ground contact portion overlapping with the forefoot portion covering portion in a thickness direction of the shoe, a plurality of bend guiding grooves arranged so as to be aligned in the foot length direction are formed in the front ground contact portion, each of the plurality of bend guiding grooves having a shape extending continuously or intermittently from an inner edge portion to an outer edge portion in the foot width direction, and a length between ends on the outer side in the foot width direction, of the bend guiding grooves adjacent to each other in the foot length direction, is longer than a length between ends on the inner side in the foot width direction, of the bend guiding grooves adjacent to each other in the foot length direction. The shoe according to claim 5, wherein the sole further includes an inner reinforcing portion provided on a side part of the midsole on the inner side in the foot width direction and made of a material having a hardness higher than a hardness of a material of the midsole, the plurality of inner high rigidity portions include a rearmost inner high rigidity portion located at a rearmost position in the foot length direction, the plurality of bend guiding grooves include a rearmost bend guiding groove located at a rearmost position in the foot length direction, and a front end of the inner reinforcing portion in the foot length direction is located more rearward in the foot length direction than a line segment that connects an inner end of the rearmost inner high rigidity portion in the foot length direction and an inner end of the rearmost bend guiding groove in the foot length direction. 10. The shoe according to claim 9, wherein the sole further includes an inner reinforcing portion provided on a side part of the midsole on the inner side in the foot width direction and made of a material having a hardness higher than a hardness of a material of the midsole, the plurality of inner high rigidity portions include a rearmost inner high rigidity portion located at a rearmost position in the foot length direction, the plurality of bend guiding grooves include a rearmost bend guiding groove located at a rearmost position in the foot length direction, and a front end of the inner reinforcing portion in the foot length direction is located more rearward in the foot length direction than a line segment that connects an inner end of the rearmost inner high rigidity portion in the foot length direction and an inner end of the rearmost bend guiding groove in the foot length direction. Allowable Subject Matter Claims 1 and 3-6 would be allowable if the double patenting rejection set forth in this Office action were to be overcome. Claims 2 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims. The following is a statement of reasons for the indication of allowable subject matter: although Nishiwaki (US 2013/0005083), the closest prior art, teaches a shoe structure having upper with inner functional portions with high and low rigidity portions arranged as claimed. Nishiwaki further teaches the presence of a sole having a midsole and outer reinforcing portion with rear, front, and bend allowing portions. Nonogawa (US 2015/0082668) teaches a shoe having a sole with an outer reinforcing portion having a higher hardness than a material of a midsole. That said, the low rigidity portions of Nishiwaki are spaced from the peripheral edge portion of the upper by the high rigidity portion material and cannot be disposed at a boundary as required by claim 1 since such a boundary does not exist in Nishiwaki. Modification of Nishiwaki and/or Nonogawa to meet such limitations would constitute impermissible hindsight reconstruction based solely on Applicant’s disclosure. Conclusion The prior art made of record and not relied upon is considered pertinent to Applicant's disclosure. US 2017/0303639 to Ito et al. is directed to a shoe having a reinforcement portion along a sole edge. Any inquiry concerning this communication or earlier communications from the examiner should be directed to MATTHEW R MARCHEWKA whose telephone number is (571) 272-4038. The examiner can normally be reached M-F: 9:00AM-5:00PM EST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, CLINTON T 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. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /MATTHEW R MARCHEWKA/Examiner, Art Unit 3732