Appeal No. 2000-2040 Page 5
Application No. 09/027,867
outward angulation to provide lateral stability and enhanced
traction. While Dassler does teach a cleat having arms disposed
at an outward angulation to provide a high degree of slip
resistance, sole elasticity, and lateral stability, we fail to
find any motivation in any of the applied prior art, to have
modified the Softspikes' golf shoe cleat to have included such a
feature absent the use of impermissible hindsight.2 It follows
that we cannot sustain the examiner's rejections of claims 1, 2,
5, 6, 9, 10, 15, 16 and 21.
REMAND
We remand this application to the examiner for consideration
of the following issues of patentability:
1. Are any of the pending claims anticipated under 35 U.S.C.
§ 102(b) by French Publication No. 2,679,421 (of record) to
Bouyer? As shown in Figures 1-4 of Bouyer, the spike/cleat (for
a sports shoe, especially a golf shoe) does include a plurality
of points/teeth having a surface with an outward angulation.
2 The use of such hindsight knowledge to support an
obviousness rejection under 35 U.S.C. § 103 is, of course,
impermissible. See, for example, W. L. Gore and Assocs., Inc. v.
Garlock, Inc., 721 F.2d 1540, 1553, 220 USPQ 303, 312-13 (Fed.
Cir. 1983), cert. denied, 469 U.S. 851 (1984).
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