Appeal No. 2000-1315
Application 09/152,563
provide Famolare’s selectable traction area with a reduced
thickness as recited in claim 15. The Aulby affidavit is
entitled to little, if any, probative value as evidence of
non-obviousness here since the benefits alleged in the
affidavit are afforded by a bowling shoe tip which is not part
of the shoe recited in claim 15.
Accordingly, we shall sustain the standing 35 U.S.C.
§ 103(a) rejection of claim 15 as being unpatentable over
Famolare in view of Bauer, McCord, Leclercq and Trentin.
We shall not sustain, however, the standing 35 U.S.C.
§ 103(a) rejection of claims 12 and 13, which depend from
claim 10, as being unpatentable over Famolare in view of
Bauer, or the standing 35 U.S.C. § 103(a) rejection of claim
14, which depends from claim 10, as being unpatentable over
Famolare in view of Bauer, Ludwig, Gillet and Guarrera. For
the reasons expressed below, the scope of these claims is
unclear. As a consequence, the standing prior art rejections
thereof must fall because they are necessarily based on
speculative assumption as to the meaning of the claims. See
In re Steele, 305 F.2d 859, 862-63, 134 USPQ 292, 295 (CCPA
1962). It should be understood, however, that our decision in
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