Appeal No. 98-0464
Application 08/554,386
12 to the lacing margin 20 of the shoe to provide lateral
support for the wearer’s foot. The reinforcing members are
made of a flexible and non-stretchable material such as nylon
(see the Abstract; column 1, lines 43 through 57; column 2,
lines 24 through 35; and column 3, lines 42 through 52).
According to the examiner,
[a]ssuming arguendo that vinyl is NOT a non-
stretchable material, as claimed by Appellant, Brown
shows that nylon reinforcing straps are an
equivalent structure known in the art. Therefore,
because these two reinforcing materials were art-
recognized equivalents at the time the invention was
made, one of ordinary skill in the art would have
found it obvious to substitute the nylon material of
Brown for the leather or vinyl reinforcing saddle of
Misevich et al. because nylon provides a high degree
of support for the foot and which, at the same time,
has a long life and will not stretch during use
[answer, pages 5 and 6].
To begin with, expedients which are functionally and/or
mechanically equivalent to one another are not necessarily
obvious in view of one another. See In re Scott, 323 F.2d
1016, 1019, 139 USPQ 297, 299 (CCPA 1963). Moreover,
Misevich’s saddle 31 and Brown’s reinforcing members 30 and 32
have little, if any, functional and/or mechanical equivalence.
Misevich’s saddle 31 is designed to afford a highly flexible
and universal coupling between spaced sole units to permit
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