Appeal No. 2001-1398
Application 09/289,171
9 can maintain high flexibility while keeping high resilience”
(column 3, lines 6 through 8). In a second embodiment (see
Figure 7), the outsole 9 includes the metallic grains 7 embedded
directly therein. Miyata also discloses that the weights 8 may
be embedded in weight chambers 6 formed in the rubber layer 14,
and that
the weight chambers 6 may be formed in the cup-shaped
insole 11 to embed the weights 8 therein. In this
arrangement, since the cup-shaped insole 11 is
detachable, the weights 8 are freely detachable from
the shoe if it is desired to use the shoe as an
ordinary light-weight training shoe (column 4, lines 60
through 65).
In proposing to combine the foregoing references to reject
the appealed claims, the examiner concludes that “[i]t would have
been obvious to replace the weights of the insert of Shanahan
with particles of weighted material enclosed in a flexible
material, as taught by Miyata, to provide better flexibility and
cushioning characteristics” (answer, page 4).
The appellant’s position that this reference combination
rests on impermissible hindsight focuses on alleged deficiencies
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