Appeal No. 98-1538
Application No. 08/698,470
view of the teachings of either Simoglou or Hackner in order
to achieve the advantages of aiding walking ability as taught
by Simoglou or bringing about the stabilization of the foot as
taught by Hackner.
With respect to (c), the appellants' contention is simply
not commensurate in scope with the claimed subject matter.
That is, independent claim 1 does not require that the sole of
a wearer's foot be directly supported by the substantially
planar upper surface as the appellants appear to argue.
Rather, this claim more broadly requires that the sole of the
shoe be "below" the sole of a wearer's foot "for supporting
the sole [of a wearer's foot]." Viewing Fig. 1 of Whitaker,
it is readily apparent that the substantially planar surface 6
is both below the sole of a wearer's foot and supports the
sole of a wearer's foot (albeit indirectly via sole 2).
The appellants have not separately argued the
patentability of dependent claims 28 and 29 with any
reasonable degree of specificity. Accordingly, these claims
fall with independent claim 1. In re Nielson, supra, and 37
CFR § 1.192(c)(7).
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