Jason Berns et al.

Patent Trials and Appeals Board

Sep 11, 2019

15176476 - (D) (P.T.A.B. Sep. 11, 2019)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
15/176,476 06/08/2016 Jason Berns P-INN-0096-CON2 8363
124719 7590 09/11/2019
Edell Shapiro & Finnan LLC
9801 Washingtonian Blvd
Suite 750
Gaithersburg, MD 20878
EXAMINER
FERREIRA, CATHERINE M
ART UNIT PAPER NUMBER
3732
NOTIFICATION DATE DELIVERY MODE
09/11/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
epatent@usiplaw.com
pair_underarmour@firsttofile.com
patents@underamour.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte JASON BERNS, JULIAN ELLIS, TOM LUEDECKE, and
THOMAS WHITE1
__________

Appeal 2019-001428
Application 15/176,476
Technology Center 3700
__________

Before MICHAEL L. HOELTER, JAMES P. CALVE, and
ALYSSA A. FINAMORE, Administrative Patent Judges.

HOELTER, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
This is a Decision on Appeal, under 35 U.S.C. § 134(a), from the
Examiner’s Non-Final Rejection of claims 1, 2, 4–8, 10–18, and 21–24,
which constitute all the claims pending in this Application. Non-Final Act.
1 (Office Action Summary). Claims 3, 9, 19, and 20 have been canceled.
App. Br. 27, 28, 30 (Claims Appendix). We have jurisdiction under 35
U.S.C. § 6(b).

1 “The real party in interest in the present appeal is Under Armour, Inc.”
App. Br. 3. We refer to the appealing party as “Appellant.”
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For the reasons explained below, we AFFIRM-IN-PART the
Examiner’s decision to reject the claims.
CLAIMED SUBJECT MATTER
The disclosed subject matter “is directed to footwear and, in
particular, to an article of footwear with an upper including [a] textile
element and a method of forming the article of footwear.” Spec. ¶ 2.
Apparatus claims 1 and 13 are independent. Claim 1 is illustrative of the
claims on appeal and is reproduced below.
1. An upper for an article of footwear, the upper
comprising:
a textile structure including a plurality of yarn rows, each
yarn row of the plurality of yarn rows including a first strand
aligned with a second strand, the first and second strands being
interlocked via stitches disposed at selected locations along a
length of the yarn row such that each distance between adjacent
stitches along the yarn row is 5 mm or less, wherein:
the stitches in the plurality of yarn rows define a
stitch density within the upper, the stitch density being the
number of stitches present within a selected area of the upper,
a first selected area of the upper possesses a first
stitch density and a second selected area of the upper possesses
a second stitch density, and
the first stitch density is greater than the second
stitch density.
REFERENCES RELIED ON BY THE EXAMINER
Bruno US 4,254,563 Mar. 10, 1981
Meschter ’822 US 2007/0271822 A1 Nov. 29, 2007
Meschter ’564 US 2010/0251564 A1 Oct. 7, 2010
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THE REJECTIONS ON APPEAL
Claims 1, 2, 4–7, 10, 11, 13–16, and 18 are rejected under 35 U.S.C.
§ 103 as unpatentable over Meschter ’822.2
Claims 12 and 21–24 are rejected under 35 U.S.C. § 103 as
unpatentable over Meschter ’822 and Meschter ’564.3
Claims 8 and 17 are rejected under 35 U.S.C. § 103 as unpatentable
over Meschter ’822 and Bruno.
ANALYSIS
The rejection of claims 1, 2, 4–7, 10, 11, 13–16, and 18
as unpatentable over Meschter ’822
Appellant argues claims 1, 2, 10, and 11 together (see App. Br. 10–
14), claims 4 and 5 together (see App. Br. 14–15), claim 6 alone (see App.
Br. 16), claim 7 alone (see App. Br. 17), claims 13–15 and 18 together (see
App. Br. 18–20), and claim 16 alone (see App. Br. 21). We select claims 1,
4, 6, 7, 13, and 16 for review, with the remaining claims standing or falling
with their respectively grouped claim under review. See 37 C.F.R.
§ 41.37(c)(1)(iv).

2 The Examiner listed claim 8, but there is no reference to the rejection of
claim 8 under Meschter ’822 alone. Instead, the Examiner rejects claim 8 in
a following rejection involving Meschter ’822 and Bruno. We address claim
8 with respect to this latter rejection.
3 The Examiner does not list a rejection for claims 21–24, but the Examiner
provides specific reasons for their rejection under 35 U.S.C. § 103 over
Meschter ’822 and Meschter ’564. See Non-Final Act. 10–11. Appellant
understands that such claims have been rejected stating, “the rejections of
claims . . . 21–24 are improper and should be reversed.” App. Br. 26.
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Claim 1
Claim 1 recites a plurality of yarn rows wherein each yarn row
includes “first and second strands being interlocked via stitches . . . such that
each distance between adjacent stitches along the yarn row is 5 mm or less.”
The Examiner relies on Meschter ’822 for such teachings (see Non-Final
Act. 4) and particularly Paragraph 62 therein (see Ans. 7; see also Notice of
Panel Decision from Pre-Appeal Brief Review dated April 20, 2018).
Prior to reviewing Meschter ’822, we first interpret the claim term
“stitches.”4 Paragraph 19 of Appellant’s Specification references “FIG. 2B”
and states, “the strands 215A, 215B are coupled via a stitch 225, i.e., an
interlocking structure that locks the strands together.” Figure 2B illustrates
two such stitches 225, and a distance between them identified as “SL.”
Appellant’s Specification states, “[t]he distance between adjacent stitches is
referred to as the stitch length SL.” Spec. ¶ 20; see also Reply Br. 3
(employing Appellant’s Specification and Figure 2B to describe “stitches
along a single yarn row”). Based on such disclosures, we understand claim
1 as reciting a plurality of yarn rows, each yarn row comprising co-
extending first and second strands that are “interlocked via stitches” and that
the “distance between adjacent stitches [i.e., “stitch length SL”] along the
yarn row is 5 mm or less.”
Appellant does not dispute the Examiner’s finding that a stitch length
is disclosed in the cited art (see Non-Final Act. 4; App. Br. 11 (“Meschter
’822 clearly discloses a stitch length.”)), only that the cited art does not

4 The Examiner acknowledges that “Appellant can be his own
lexicographer.” Ans. 7.
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disclose the recited “distance between adjacent stitches” of “5 mm or less.”
See App. Br. 10–14. Appellant replicates the relevant portion of Paragraph
62 of Meschter ’822 concluding, “[t]his, however, is not a teaching of
providing a stitch length of five millimeters or less.” App. Br. 12.
Paragraph 62 of Meschter ’822 states, “[c]onventional satin-stitch
embroidery, therefore, involves threads that extend between locations
separated by twelve millimeters or less.”5 Paragraph 62 of Meschter ’822
states that the formation of “satin-stitches . . . may utilize a lock-stitch to
secure thread 42 to base layer 41.” In describing the formation of “lock-
stitches,” Paragraph 61 of Meschter ’822 describes “piercing a first location
of base layer 41 with a needle to pass a first loop of thread 42 through base
layer 41,” which first loop is then secured by “another thread.” This same
paragraph addresses “moving the needle to a second location” and “piercing
the second location of base layer 41 with the needle to pass a second loop of
thread 42 through base layer 41,” which second loop is also secured by the
“other thread.” Paragraph 61 of Meschter ’822 concludes, “the embroidery
machine operates to secure thread 42 to two defined locations and also
extend thread 42 between the two locations.”
Thus, the loop at each first and second “location” addressed in
Meschter ’822 readily corresponds to the “interlocking structure” described
in Appellant’s Specification as “stitch 225,” and hence the “strands being
interlocked” as claimed.6 See Spec. ¶ 19; see also Fig. 2B. That Meschter

5 Appellant’s Specification identifies a “satin stitch” (along with “a
lockstitch”) as an example of “stitches [that] may be utilized.” Spec. ¶ 19.
6 Paragraph 62 of Meschter ’822 further employs the word “stitches,” but in
Meschter ’822’s usage, a “stitch” is a completed assembly (i.e., two locked
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’822 describes the thread also being secured to a base layer via this operation
does not circumvent the fact that the strands of the thread, during such
operation, are likewise “being interlocked via stitches” at the same interval.
In view of the Examiner’s specific reference to Paragraph 62 of
Meschter ’822 (see supra), and particularly the lines stating that these
“locations [are] separated by twelve millimeters or less,” Appellant’s various
contentions that Meschter ’822 fails to teach the recited “distance between
adjacent stitches . . . is 5 mm or less” is not persuasive. In other words, in
view of the Examiner’s citation to where Meschter ’822 explicitly discloses
the recited range, Appellant’s contentions that the Examiner fails to make a
prima facie case of obviousness, that Meschter ’822 fails to disclose the
recited value, that Meschter ’822 teaches away from this value, that the
Examiner fails to provide proper motivation to modify Meschter ’822, and
that the Examiner relies on improper speculation, unfounded assumptions or
hindsight reconstruction (see App. Br. 10–14; Reply Br. 4), are not
persuasive of Examiner error. Further, Appellant does not explain how any
criticality associated with the recited range is not already associated with
Meschter ’822’s disclosed (and overlapping) range. See App. Br. 14; Reply
Br. 4. Accordingly, we sustain the Examiner’s rejection of claims 1, 2, 10,
and 11 as being obvious in view of Meschter ’822.
Claim 4
Claim 4 depends from claim 1 and additionally recites “wherein, in
the first stitch density area, the stitches are present every 0.20 mm to 1.50

piercings with a span of thread therebetween as described in Paragraph 61).
In contrast, Appellant’s usage of “stitch” is as either a beginning or ending
terminus of a strand span. See Spec. ¶¶ 19, 20, and Fig. 2B.
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mm.” The Examiner states, “Meschter ’822 is silent to the first stitch
density area, the stitches are present every 0.20 mm to 1.50 mm.” Non-Final
Act. 5. The Examiner thereafter relies on a desire to “optimize the strength
and stability and prevent breakage of the yarns in a specific area” as a reason
the stitches would be “present every 0.20 mm to 1.50 mm” as recited. Non-
Final Act. 6; see also Ans. 9–10.
This stated reason sidesteps the Examiner’s more direct finding above
that Meschter ’822 (and particularly Paragraph 62 thereof) expressly teaches
the limitation of a “distance between adjacent stitches along the yarn row is
5 mm or less.” See Notice of Panel Decision from Pre-Appeal Brief Review
dated April 20, 2018; see also Ans. 7. Claim 4 recites, “the stitches are
present every 0.20 mm to 1.50 mm,” and Appellant is not persuasive that
this limitation fails to be disclosed by Meschter ’822’s teaching of a
corresponding distance “separated by twelve millimeters or less.” Meschter
’822 ¶ 62. Regarding the recitation to a “first stitch density area,” the
various figures of Meschter ’822 readily disclose areas lacking any such
threading (i.e., stitching) as well as areas where numerous threads converge
upon each other. See also, e.g., Meschter ’822 ¶¶ 35, 36, 42, 43, 48, 53, 54,
57. Appellant does not explain how such illustrations (and discussions
thereof) fail to disclose the recited “first stitch density area.”
Thus, we affirm the Examiner’s rejection of claim 4 in view of the
Examiner’s reliance on Meschter ’822 for such teachings. Appellant’s
contention that “the prior art reference must disclose parameter values
overlapping the claimed ranges” (App. Br. 14) is not persuasive because the
range disclosed in Meschter ’822 (see Meschter ’822 ¶ 62) and that recited
by Appellant do, in fact, overlap. Further, and as above, Appellant does not
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explain how any criticality associated with the recited range is not already
associated with Meschter ’822’s disclosed (and overlapping) range. See
App. Br. 14–15. Additionally, Appellant’s contentions of optimization and
teaching away (see App. Br. 14–16) are equally not persuasive in view of the
range expressly disclosed in Paragraph 62 of Meschter ’822.
Appellant also contends, “[t]he Office appears to be interchanging the
claimed concepts of stitch length and stitch density” and further that “[s]titch
density, then, operates independently of stitch length.” Reply Br. 3. Such
contentions are not persuasive because Appellant has defined “stitch length”
as “distance between adjacent stitches” (Spec. ¶ 20) and thus, any variation
in the distance between adjacent stitches would cause a likewise variation in
the density of such stitches, i.e., stitch density. Consequently, we are not
persuaded the Examiner erred in view of the interrelationship between the
claimed concepts of stitch length and stitch density.
Accordingly, we sustain the Examiner’s rejection of claims 4 and 5 as
being obvious in view of Meschter ’822.
Claim 6
Claim 6 depends from claim 1 and additionally recites an upper
comprising both a sole perimeter and an eyelet perimeter such that “the sole
perimeter possesses the first stitch density.” Claim 1 recites “a first selected
area of the upper possesses a first stitch density” in contrast to a second area
having a second stitch density. Neither claim 1 nor claim 6 assigns a
numerical value to any stitch density, only requiring that “the first stitch
density is greater than the second stitch density.”
The Examiner finds that Meschter ’822 discloses these limitations “as
best seen in Figure 1.” Non-Final Act. 6. Figure 1 of Meschter ’822
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discloses a multitude of threads extending generally horizontally and also
converging on each other while also intersecting other threads that extend
generally vertically from the eyelet perimeter to the sole perimeter. See also
Ans. 11. Additionally, some areas of this upper are depicted as lacking any
such threads at all. See Meschter ’822 Figures. In view of such disclosures,
Figure 1 of Meschter ’822 discloses a sole perimeter having a first stitch
density (i.e., where threading is illustrated) that is greater than a second
stitch density (i.e., an area where there is no threading and hence no stitching
or stitch density). Appellant does not explain how this is not the case.
Consequently, we disagree with Appellant’s denial that “any of these
areas have stitch densities as claimed.” App. Br. 16. Accordingly, we are
not persuaded the Examiner erred in rejecting claim 6 as being obvious in
view of Meschter ’822. We sustain the Examiner’s rejection of claim 6.
Claim 7
Claim 7 depends from claim 6 and recites “the eyelet perimeter
further possesses the first stitch density” and that the area between the sole
and eyelet perimeters “possesses the second stitch density.” As above with
respect to claim 6, the Examiner finds that Meschter ’822 discloses these
limitations “as best seen in Figure 1.” Non-Final Act. 6. Again, Figure 1 of
Meschter ’822 discloses a portion of the eyelet perimeter possessing a first
stitch density (i.e., where threading is illustrated) that is greater than a
second stitch density (i.e., a mid-area where there is no threading and hence
no stitching or stitch density). See Meschter ’822 Figures; see also Ans. 13.
Similar to the above, Appellant is not persuasive that the Examiner’s
reliance on Figure 1 of Meschter ’822 is faulty. We sustain the Examiner’s
rejection of claim 7 as being obvious over Meschter ’822.
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Claim 13
Independent claim 13 differs from claim 1 above in that claim 13
lacks the recitation to “5 mm or less,” but claim 13 includes many similar, if
not identical, other limitations, as recited in claim 1. Regardless, claim 13
specifically differs from claim 1 by reciting “a self-supported textile
structure” in the preamble and concluding that the overlapping yarn rows
“are not secured to a substrate.” Appellant does not dispute the other
findings made by the Examiner, but disagrees that Meschter ’822 discloses
“a self-supported textile structure (i.e., a textile structure which is not
supported by a substrate) as recited in claim 13.” App. Br. 19; see also
Reply Br. 5–6.
The Examiner references Paragraphs 42, 57, 58, and 61 of Meschter
’822 as teaching this “not secured to a substrate” limitation. Non-Final Act.
7; Ans. 15. Paragraph 42 states, “[p]ortions of threads 52 may extend
through base layer 51 or lie adjacent to base layer 51.”7 We understand the
Examiner to be referencing those thread portions that “lie adjacent to base
layer 51” and which “may be unsecured to base layer 51.” However,
Meschter ’822 is clearly referring to thread portions, some of which extend
through a base layer via the aforementioned stitching while others (i.e., those
portion between such stitches) lying adjacent the base layer.8 See also

7 Paragraph 42 of Meschter ’822 continues stating “[i]n areas where threads
52 lie adjacent to base layer 51, threads 52 may be unsecured to base layer
51.”
8 Appellant contends, “[s]imply because the entirety of the thread 42, 52 is
not joined to the base layer 41, 51 does not mean that the entirety of the
thread is unsecured thereto.” App. Br. 19. This argument is consistent with
our understanding of claim 13 reciting layers of yarn rows that “are not
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Meschter ’822 ¶¶ 6 (describing a method that “includes embroidering a base
layer with at least one thread to locate a plurality of sections of the thread
adjacent a surface of the base layer”), 31 (“[a]n embroidery process, which
will be described in greater detail below, is utilized to secure or locate
threads 42 relative to base layer 41”), 35 (“[p]ortions of threads 42 extend
through base layer 41 or lie adjacent to base layer 41”). The other cited
paragraphs of Meschter ’822 relied on by the Examiner (i.e., Paragraphs 57,
58, and 61 (see Ans. 15)) are all either silent regarding no securement to a
substrate, or address securement to a substrate. See also Meschter ’822 ¶ 56.
To emphasize the lack of securement, Appellant’s Specification states,
“[t]he above described invention provides a self-supporting embroidered
element. This is in contrast with conventional uppers utilizing embroidery
techniques, which require a substrate or foundation layer to which one or
more strands are secured.” Spec. ¶ 59.
The Examiner does not explain where it is evident that Meschter ’822
discloses the limitation “wherein the overlapping first and second layers [of
yarn rows] are not secured to a substrate.” Accordingly, the Examiner has
not established by a preponderance of the evidence that independent claim
13 is obvious in view of Meschter ’822. Thus, based on the record
presented, we do not sustain the Examiner’s rejection of claims 13–15 and
18 as being obvious over Meschter ’822.9

secured to a substrate” (i.e., “the entirety of the thread is unsecured
thereto”).
9 However, Appellant’s Specification states, “[o]nce the desired number of
rows is created, the temporary substrate is then removed, resulting in a self-
supporting structure.” Spec. ¶ 26; see also id. at 44 (“[o]nce removed, a
self-supporting embroidered structure results”). Thus, at some time,
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Claim 16
Claim 16 depends, ultimately, from claim 13 discussed above. For
similar reasons (subject to our note in the immediately above footnote), we
do not sustain the Examiner’s rejection of claim 16 as being obvious over
Meschter ’822.
The rejection of claims 12 and 21–24
as unpatentable over Meschter ’822 and Meschter ’564
Claim 12
Claim 12 depends from claim 1 and further recites “wherein strands of
the yarn rows are not secured to a substrate” (a limitation similar to that
discussed above with respect to independent claim 13). In rejecting claim
12, the Examiner identifies both Meschter references stating, “the combined
references disclose all the limitations of claim 12 except they do not disclose
wherein strands of the yarn rows are not secured to a substrate.” Non-Final
Act. 9 (emphasis added). Immediately thereafter, however, the Examiner
states “Meschter ’564 discloses wherein strands of the yarn rows are not
secured to a substrate (0026, 0036 of Meschter ’564 and paragraph 0042 of
Meschter [’]822).” Non-Final Act. 9. This is confusing since the Examiner
is saying that the references both fail to disclose this “not secured to a

Appellant’s yarn rows are secured to a substrate despite a recitation that they
“are not secured to a substrate.” In the event further prosecution of this
application occurs, we leave it to the Examiner to ascertain whether claim 13
particularly points out and distinctly claims this limitation in a manner that
avoids contradiction with Appellant’s own Specification.
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substrate” limitation, and also identifies where both references disclose this
limitation.10
Appellant states, “[t]he key to supporting any rejection under 35
U.S.C. § 103 is the clear articulation of the reasons why the claimed
invention would have been obvious.” App. Br. 22. Appellant also states,
“Applicant, however, can find no statement in either referenced paragraph of
Meschter ’564 that supports this position.”11 App. Br. 22.
We agree with Appellant’s characterization of Paragraph 26 of
Meschter ’564 as being silent regarding yarn rows, strands, threads, etc. not
being secured to a substrate as recited. See App. Br. 22. We likewise agree
with Appellant’s characterization of Paragraph 36 of Meschter ’564 as being
a “header.” App. Br. 22. However, we also undertake a review of the
paragraphs following this header to ascertain if they address yarn rows,
strands, thread, etc. as not being secured to a substrate as recited. The
following paragraphs address the issue of textiles that may only incur forces
in a certain direction such that yarns lying in other directions are either not
utilized, or under-utilized. Consequently, Paragraph 39 of Meschter ’564
states, “[a]ccordingly, the orientations, locations, and quantity of strands 34
are selected to provide structural components that are tailored to a specific
purpose.” Again, Meschter ’564 is silent (or not altogether clear) as to any
yarn rows, strands, threads, etc. not being secured to a substrate as recited.

10 Appellant agrees “with the statement by the Office that the Meschter ’822
layers are secured to a substrate.” Reply Br. 5.
11 The matter of Paragraphs 42, 57, 58 and 61 of Meschter ’822 has been
addressed above regarding claim 13. See Ans. 17, 18.
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Appellant references In re Warner, 379 F.2d 1011, 1017 (CCPA
1967) which provides instruction from our reviewing court that the
Examiner may not “resort to speculation, unfounded assumptions or
hindsight reconstruction to supply deficiencies in the factual basis” in the
event there are “doubts that the invention is patentable.” App. Br. 22–23.
Here, in view of the Examiner’s citations to these Meschter
references, and the content contained therein, the Examiner has not
established by a preponderance of the evidence that claim 12 is obvious in
view of Meschter ’822 and Meschter ’564. Thus, based on the record
presented, we do not sustain the Examiner’s rejection of claim 12 as being
obvious over these two references.12
Claims 21 and 22
Claims 21 and 22 depend from independent claim 13. The
Examiner’s rejection of claims 21 and 22 does not cure the deficiency of the
Examiner’s rejection of claim 13 discussed above. Non-Final Act. 10.
Accordingly, we do not sustain the rejection of claims 21 and 22.
Claims 23 and 24
Appellant does not present any argument regarding the Examiner’s
rejection of these claims despite acknowledging their rejection. See Non-
Final Act. 10–11; App. Br. 26. Claims 23 and 24 each depend from claim 1.
For the reasons discussed above with respect to claim 1, we sustain the
rejection of claims 23 and 24.

12 The footnote above regarding Appellant’s temporary affixation of the yarn
rows to a substrate, and the need to ascertain whether claim 12 particularly
points out and distinctly claims this limitation is equally applicable here.
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The rejection of claims 8 and 17
as unpatentable over Meschter ’822 and Bruno
Claim 8 ultimately depends from independent claim 1, whereas claim
17 ultimately depends from independent claim 13. As we are not sustaining
the Examiner’s rejection of claim 13 for the reasons expressed above
(subject to the indicated footnote), we likewise do not sustain the rejection of
its dependent claim 17 for these same reasons.
Claim 8 includes additional limitations directed to a tongue and a
tongue opening. The Examiner states, “the combined references disclose all
the limitations of claim 8 except they do not disclose” lateral and medial
body sides that “define a tongue opening” and a “tongue is positioned within
the tongue opening.” Non-Final Act. 11. Confusingly, however,
immediately following this statement of what the references do not disclose,
the Examiner asserts that “Bruno discloses” these limitations. Non-Final
Act. 11. More specifically, the Examiner finds that Bruno discloses a tongue
comprising “a textile structure including a plurality of intersecting yarn rows
(as best seen in Figure 1)” including first and second strands “being
interlocked via stitches” along their length. Non-Final Act. 11–12: see also
Ans. 19 (referencing “Figures 1, 2 and 4 of Bruno” and “paragraph 0061 of
Meschter ’822”). Appellant states, “there is no disclosure in Bruno
regarding the claimed interlocked strand structure” of the recited tongue.
App. Br. 25.
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It is not disputed that Bruno discloses “tongue portion 40.”13 Bruno
2:36–37. Bruno also discloses that front and back members “are quilted
together as shown at 24.” Bruno 2:24–25. Appellant contends, “[a] cryptic
reference to sewing provides no support for a specific structure of two
aligned strands interlocked [at] selected locations.” App. Br. 25. Further,
“[w]ith specific regard to sewing, conventional sewing techniques do not
include interlocked strand pairs.” App. Br. 25.
Paragraph 37 of Meschter ’822, clearly states that “suitable materials
for threads 42 include various filaments and yarns.” This paragraph
continues stating, “yarns may be formed from a single filament or a plurality
of individual filaments grouped together.” Appellant does not explain how
this is not a disclosure of the recited yarn row that includes first and second
aligned strands. Regarding the recitation that these strands are “interlocked
via stitches,” Appellant fails to indicate how strand interlocking via spaced
stitches has not already been addressed above with respect to parent claim 1.
Appellant further argues that “sewing involves the manipulation of a
single thread that is secured utilizing a selected stitch pattern.” App. Br. 25.
This contention runs counter to the discussion of “lock-stitches” in
Paragraph 61 of Meschter ’822 which clearly describes sewing involving the
manipulation of two separate threads (i.e., “thread 42” and “another thread”
that passes through a loop formed by thread 42). Further, such a limitation
(i.e., sewing limited to a single thread) is not a recited claim element.

13 Although Meschter ’822 does not illustrate a tongue structure in the
accompanying figures, this reference, at Paragraphs 2 and 28, states “the
upper may include a tongue that extends under” lacing.
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Accordingly, and based on the record presented, we are not persuaded
the Examiner erred in rejecting claim 8 as being obvious over Meschter ’822
and Bruno.
DECISION
The Examiner’s rejection of claims 1, 2, 4–7, 10, and 11 as
unpatentable over Meschter ’822 is affirmed.
The Examiner’s rejection of claims 13–16 and 18 as unpatentable over
Meschter ’822 is reversed.
The Examiner’s rejection of claims 12, 21, and 22 as unpatentable
over Meschter ’822 and Meschter ’564 is reversed.
The Examiner’s rejection of claims 23 and 24 as unpatentable over
Meschter ’822 and Meschter ’564 is affirmed.
The Examiner’s rejection of claim 8 over Meschter ’822 and Bruno is
affirmed.
The Examiner’s rejection of claim 17 over Meschter ’822 and Bruno
is reversed.
No period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED-IN-PART