Appeal No. 2001-0378 Page 16
Application No. 08/873,876
Pendergast made from PVC foam with a Shore A hardness of from 5A to
50A inherently would have a resiliency index in the range from about
.05 to about .5.
We find the examiner's position to be without merit. As set
forth above, inherency may not be established by probabilities
or possibilities. In our view, Pendergast's teachings of a sole
made from PVC foam with a Shore A hardness of from 5A to 50A would
not inherently have a resiliency index in the range from about .05 to
about .5 for the reasons set forth in Steven Robbins' declaration
under 37 CFR § 1.132. The mere fact that one particular PVC
foam (i.e., the PVC aerated polymer foam of Shore A5 hardness
identified on page 14 of the specification) has a resiliency
index in the range from about .05 to about .5 is not a sufficient
basis to conclude that Pendergast's sole made from PVC foam with a
Shore A hardness of from 5A to 50A would inherently have a resiliency
index in the range from about .05 to about .5.
Since all the limitations of claims 1 to 3, 7 to 11 and 15 to
18 are not disclosed in Pendergast for the reasons set forth above,
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