Ex parte SUSSMANN - Page 4

          Appeal No. 95-4148                                                          
          Application 08/113,661                                                      

          18) for the respective positions of the appellant and the                   
          examiner with regard to the propriety of these rejections.                  
               Claims 1 and 21, the two independent claims on appeal,                 
          recite a shoe having, inter alia, a tensioning strip formed as              
          part of a structural unit for each side of the shoe, with each              
          structural unit having at least two supporting straps which run             
          over the shoe upper to at least an edge area of the sole as                 
          permanent parts thereof with the tensioning strip.  These claims            
          also require the tensioning strips to have a greater stiffness              
          than the supporting straps.                                                 
               According to the examiner, Berger teaches, or at least would           
          have suggested, a shoe having such features.  In this regard, the           
          examiner states that “[t]he [Berger] supporting straps are made             
          of a transparent or translucent material, see column 11, lines              
          62-66.  The [Berger] tensioning strips are made of a hard                   
          material, see column 4, lines 48-54, and therefore have a greater           
          stiffness than the supporting straps” (answer, page 4).  The                
          examiner also states that                                                   
                    Berger teaches [at column 17, lines 4 through 8]                  
               the tensioning strips having a hardness of about 60 to                 
               70 Shore A and is silent with regard to the hardness of                
               the straps (41,42).  The selection of the [S]hore D                    
               hardness for the tensioning strips and straps of                       
               Berger, would appear to constitute no more than                        
               optimization of hardness by routine experimentation                    


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