Appeal No. 2002-1082 Page 3
Application No. 09/474,179
the brief and reply brief (Paper Nos. 23 and 25) for the appellant’s arguments
thereagainst.
OPINION
In reaching our decision in this appeal, we have given careful consideration to
the appellant's specification and claims, to the Hansen patent, and to the respective
positions articulated by the appellant and the examiner. On the basis of this review, for
the reasons which follow, we cannot sustain the examiner’s rejections.
Even assuming that Hansen’s dance shoe is a “safety shoe” having a “protective
toe” as used in claim 10, in light of the broad definition in the Dictionary of Shoe
Industry Terminology appended to appellant’s brief, a point on which we do not
necessarily agree with the examiner4, the Hansen shoe lacks a partial insole tuck
having an edge surface located within the protective toe which prevents rearward
movement of the protective toe (the toe support 44), as required by claim 10. The
examiner’s position (answer, page 5) that the short shank 50, which the examiner
considers to be the “partial insole tuck,” will to some degree prevent rearward
movement of the protective toe by abutting the forward end of the inner sole 62 does
4 While the relatively rigid toe support 44 and relatively rigid short shank 50 of Hansen’s dance
shoe, which cooperate to provide support enabling the wearer of the dance shoe to stand on the end of
his or her toes (column 3, lines 43-45), may broadly be considered a safety feature to protect the foot of
the wearer, thereby meeting appellant’s proffered definition, it appears from a reading of appellant’s
underlying disclosure that appellant’s use of “safety shoe” refers to a term which has established a
meaning in the art as a shoe adapted for hazardous work environments to provide protection to the
wearer’s foot from impact and puncture injuries. One skilled in the art would certainly not consider the
dance shoe of Hansen, even with its toe support feature, to be such a “safety shoe.”
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