Appeal No. 1998-2081
Application No. 08/562,009
It thus appears that the examiner proposes to relocate the
cushioning element B of Cohn to a position above the insole 3,
and to provide aligned openings in the heel portions of the
insole and outsole of Cohn to receive the heel plug 14 of the
relocated cushioning element, in view of Hurley.
We appreciate the similarities between various elements
of the claimed footwear and the footwear of Cohn and Hurley.
Nevertheless, it is our view that the standing rejection of
claims 1, 2, 6-8, 12, 20 and 21 is not sustainable. For one
thing, the examiner’s motivation for the proposed
modification, namely, “to improve cushioning the heel portion
of the shoe by increasing the depth of the heel plug” (answer,
page 4), is suspect because there is no suggestion in Cohn or
in Hurley that the cushioning element B of Cohn’s shoe might
be inadequate for its intended purpose, or that the proposed
modification of Cohn would actually result in improved
cushioning as suggested by the examiner. In addition, Cohn
expressly states that locating the cushioning element between
the insole and the outsole is advantageous “in points of
simplicity and efficiency, and, at the same time proves itself
comparatively inexpensive in cost of manufacture” (page 1,
5
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