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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