Appeal No. 1999-2103
Application No. 08/734,205
spike or cleat of Baylo's Figure 5 embodiment is not an
athletic shoe cleat, in that it is disclosed as a rain spike,
but we do not find it persuasive. As the shoe for use with
which the rain shoe spike is disclosed is a multi-purpose
shoe, with most of the enumerated purposes therefor being
directed to athletics, the rain spike of Figure 5 is an
"athletic shoe cleat" as claimed. Moreover, it is not
apparent to us why the rain shoe spike of Figure 5 is not
capable of use in an athletic endeavor or how it is to be
distinguished from cleats which are used in athletic
endeavors, aside from its intended use. It is well settled
that the recitation of an intended use for an old product does
not make a claim to that old product patentable. In re
Schreiber, 128 F.3d 1473, 1477, 44 USPQ2d 1429, 1431 (Fed.
Cir. 1997).
Lorme discloses a removable stud for the tread of shoes
or tires for preventing, or significantly reducing, sliding on
the street surface (translation, page 2). Lorme's studs have
teeth which appellants concede are triangular in cross-section
(brief, page 10).
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