Appeal No. 98-1538
Application No. 08/698,470
Turning now to the rejections under 35 U.S.C. § 103(a) of
claim 1 as being unpatentable over Whitaker in view of either
Simoglou or Hackner and claims 28 and 29 as being unpatentable
over Whitaker in view of either Simoglou or Hackner and
further in view of Monier, both of these rejections are
bottomed on the examiner's view that it would have been
obvious to provide a rear planar surface on the shoe of
Whitaker in view of the teachings of either Simoglou or
Hackner. The main thrust of the appellants' position is that
(a) Whitaker is directed to a protective attachment worn over
shoes rather than to a shoe as claimed, (b) there is no
teaching or suggestion to combine the teachings of the
references in the manner proposed by the examiner and (c) the
proposed combination would not
provide a substantially planar surface for
supporting the sole of a wearer's foot as featured
in Claim 1. The sole of a wearer's foot in the
proposed combination would lie on [a] non-planar
surface of a shoe of FIGURE 1. [Brief, page 10.]
Once again we are unpersuaded by the appellants'
arguments. With respect to (a), the examiner has correctly
noted that the footwear or shoe of Whitaker as depicted in
Fig. 1 includes a sole 11 having a substantially planar upper
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