Appeal No. 2007-0382
Reexamination 90/007,172
disclosed for “substitute upper components [i.e., straps].” (Col. 5, lines 4-12.)
These “substitute upper components” are said to include man-made imitation
leathers such as polyurethane or polyvinylchloride (PVC). (Col. 4, lines 6-12.)
Cole does not expressly state how the PVC covering is fastened to insole 12. (Fig.
1.)
The Patent Owner does not dispute the Examiner’s factual finding that Cole
describes an “insole 12 having a flexible inner compressible structure...having a
top surface, a bottom surface and a side surface extending around the outer
perimeter of the inner structure between the top and bottom surfaces...”
(Examiner’s Answer at page 3.) Likewise, the patent owner does not contend that
Cole’s description of the PVC covering over the insole 12 lacks sufficient
specificity. Nor does the Patent Owner dispute the Examiner’s factual findings
that (1) PVC would inherently form a water barrier and (2) Cole describes a PVC
covering that “substantially covers the entire top, bottom and side surfaces of the
compressible structure.” (Examiner’s Answer at page 3.)
Rather, the Patent Owner focuses on only one claim limitation to assert that
Cole does not anticipate appealed claim 1.2 Specifically, the Patent Owner
2 At oral argument, counsel for the Patent Owner confirmed that the only
question raised in the briefs with respect to appealed claim 1 is whether fastening
or stitching the PVC covering in Cole would preclude the covering from being a
“continuous layer.”
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