Appeal No. 97-1315
Application 08/264,976
the lower surface of the footwear, thereby solving a problem that existed in the field prior art
(specification, pages 2-4). This is manifested in independent claim 1 in the requirement that
the toe region of the outer sole is curled upwards in the absence of the footwear, to
press preferentially against the toe portion of the lower surface of the footwear when
the outer sole is attached thereto to resist the entry and accumulation of snow or dirt
between the footwear and the outer sole.
Shimada is directed to an outer sole for covering the downwardly protruding spikes of a golf
shoe, so that the wearer can walk across surfaces without imparting damage thereto. The problem to
which the appellant has directed his inventive efforts is not acknowledged in Shimada. More
importantly, however, Shimada does not explicitly disclose or teach, for whatever the reason, that there
should be any difference in upward curvature between the outer sole and the footwear over which it is
to be worn, much less that the upward curvature of the outer sole be greater than that of the footwear
when it is free standing. Nor, in our view, would such a relationship in curvatures appear to one of
ordinary skill in the art to be implicit from a review of the Shimada disclosure.
We therefore conclude that this requirement of claim 1 is not present in Shimada, and
anticipation does not exist with regard to claim 1 or dependent claim 2.
The Rejections Under 35 U.S.C. § 103
In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial burden of presenting a
prima facie case of obviousness (see In re Rijckaert, 9 F.3d 1531, 1532, 28 USPQ2d 1955, 1956
(Fed. Cir. 1993)), which is established when the teachings of the prior art itself would appear to have
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