Appeal No. 98-1538
Application No. 08/698,470
In view of the above we will sustain the rejections under
35 U.S.C. § 103(a) of claim 1 based on the combined teachings
of Whitaker and either Simoglou or Hackner and claims 28 and
29 based on the combined teachings of Whitaker, either
Simoglou or Hackner, and Monier.
Considering next the rejection of claims 1 and 31 under
35 U.S.C. § 103(a) as being unpatentable over Whitaker in view
of Fox, according to the examiner, it would have been obvious
to "provide a rear surface as taught by Fox in the footwear
device of Whitaker to increase exercise and stretching
benefits to the wearer of the devices" (answer, page 5). We
will not support the examiner's position. While Fox teaches a
sole which increases exercise and stretching benefits to a
wearer, Fox does so in the context of providing three distinct
surfaces (i.e, an inclined front surface 26, a surface 29 of
constant thickness and an inclined rear surface 30). That is,
Fox teaches that all three surfaces are necessary in order to
achieve the exercise and stretching benefits (see, generally,
cols. 2, 3, 6 and 7). Absent the appellants' own disclosure,
we are at a loss to understand why one of ordinary skill in
the art would have been motivated to single out only the
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