Appeal No. 2001-1398
Application 09/289,171
to a human foot” as recited in the last three lines of the claim,
the specification as a whole would reasonably convey to the
artisan that the recited insert form (particles of weighted
material and flexible porous material intermixed) would have this
capability. At most, the lack of an express statement to this
effect in the specification poses a problem under 37 CFR
§ 1.75(d)(1) which is easily correctable by amendment to the
specification.2
Accordingly, we shall not sustain the standing 35 U.S.C.
§ 112, second paragraph, rejection of claim 21.
II. The 35 U.S.C. § 103(a) rejection
Shanahan, the examiner’s primary reference, discloses a
weighted shoe for strengthening the muscles of the leg and/or
treating physical defects. The shoe comprises an upper 2, an
inner sole 10 and a bottom sole 18. The inner sole 10 supports a
flat, weight-receiving member 20 having substantially the same
shape and size as the inner sole. Member 20, which is
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