Appeal No. 98-1538
Application No. 08/698,470
OPINION
As a preliminary matter we base our interpretation of the
subject matter set forth in independent claim 1 upon the
following interpretation of the terminology appearing in the
claims. Noting that a "plane" has no thickness, we interpret
(a) "the rear plane increasing in thickness forwardly" to be -
- the area between the substantially planar upper surface and
the rear plane increasing in thickness forwardly -- and (b)
"the forward plane remaining substantially constant in
thickness" to be -- the area between the substantially planar
upper surface and the forward plane remaining substantially
constant in thickness --. In line 4 of claim 1, we interpret
"for supporting the sole" to be -- for supporting the sole of
a wearer's foot --.
Considering first the rejection of claims 1, 30 and 31
under 35 U.S.C. § 102(e) as being anticipated by Fox, the
examiner is of the opinion that "Fox shows a shoe with an
upper (13), a sole (12) with a rear plane (30) and a forward
plane (27)" (Answer, page 3). The appellants, however, argue
that:
The forward plane identified by the Examiner is not
even a forward plane in the Fox patent but is an
4
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