Appeal No. 1999-2130 Page 5
Application No. 08/813,307
was known to elevate the user’s heel on a board as represented
by the appellant’s Figure 1; (2) that there are known shoes in
the art specifically designed for weight-lifting wherein the
heel of the shoe is built up; and (3) that Karhu is one of
those shoes (Answer, page 4). Apparently, the examiner uses
“Official Notice” for the motivation for one of ordinary skill
in the art to utilize shoes having the wedge-shaped shoe
inserts disclosed in Arrowsmith and Vassar while performing a
weight-training exercise.
We initially are struck by the fact that while the
examiner refers to the Karhu shoe only under the “Official
Notice” category in the rejection, he is, in essence, relying
upon it as evidence that it was known in the art at the time of
the appellant’s invention to provide a raised heel on a weight-
training shoe. However, there is absolutely no basis in the
record from which to conclude that this reference qualifies as
prior art under 35 U.S.C. § 102, in that it is not itself
dated, nor has the examiner otherwise established a date for
it. Therefore, on this basis, the Karhu shoe is not a proper
prior art reference and is entitled to no weight insofar as
this rejection is concerned.
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