Appeal No. 98-0464
Application 08/554,386
on the proposition that the claim limitation relating to the
“band of flexible, non-stretchable material” reads on
Misevich’s “vinyl” saddle 31 because “vinyl would appear [to]
be a non-stretchable material” (answer, page 5). Misevich,
however, is completely silent as to whether the saddle, be it
made of vinyl or leather, is stretchable or not, and provides
no other reasonable support for the examiner’s position.
Since the Misevich shoe does not include any other structure
meeting the claim limitation at issue, Misevich cannot be said
to disclose, expressly or under principles of inherency, each
and every element of the invention recited in claim 1.
Accordingly, we shall not sustain the standing 35 U.S.C.
§ 102(b) rejection of claim 1, or of claims 2 through 6, 9,
10, 15 and 16 which depend therefrom, as being anticipated by
Misevich.
As for the standing 35 U.S.C. § 103 rejection of claims 1
through 6, 9 through 13, 15 and 16, the examiner’s reliance on
Brown to overcome the foregoing deficiency in Misevich is not
well taken.
Brown discloses an athletic shoe having an upper 10 which
includes reinforcing members 30 and 32 extending from the sole
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