Appeal No. 2000-2061 Page 6
Application No. 08/463,843
Figure 1) are not essential to the construction, but are optional. The examiner then opines
that it would have been obvious to extend the toe portion cavity disclosed by Funck along
the entire length of the shoe by providing a continuous mold insert on the last, in view of the
teaching of Desma-Werke, suggestion being found in the stated advantage of providing
increased impact absorption and comfort. See Answer, pages 3 and 4. We do not agree
with this conclusion. It is our opinion that even if considering that Funck discloses an
embodiment having only a single cushioning element located in the toe region of a shoe,
one of ordinary skill in the art would have been taught by this reference that if cushioning is
to be extended beyond the toe region toward the heel region, it should be placed in other
separate and unconnected cavities, such as at 7 and 15 in the embodiment of Figure 1
and those formed by last extensions 9 in the embodiment of Figure 4. This would have
operated as a disincentive to the artisan to extend the cavity in Funck continuously beyond
the toe region to the heel region, for it would interfere with the accomplishment of the
objectives and advantages of the Funck invention set forth in column 2, which are achieved
by means of the separate chambers and the webs provided therebetween.
It thus is our conclusion that the combined teachings of Funck and Desma-Werke
fail to establish a prima facie case of obviousness with regard to the subject matter recited
in independent claim method claim 15. The same can be said for independent method
claims 20, 34, 39 and 50, which also require a continuous mold insert, and independent
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