Appeal No. 1998-0210
Application No. 08/149,193
We cannot ascertain what is intended by the means plus
function recitation of “traction means” in claim 123, when
that recitation is read in light of the underlying disclosure,
i.e., the claims are indefinite in meaning. More
specifically, the disclosed ribs are readily found to be the
corresponding structure described in the specification (sixth
paragraph of 35 U.S.C. § 112) but the “equivalents” of ribs
in this art, as ribs are defined by appellants, are not
characterized. For this
reason, the metes and bounds of claims 123 through 127, 132,
and 133 are uncertain or indefinite.18
18Should this new ground of rejection be overcome by way
of findings as to what constitutes an equivalent of
appellants’ disclosed “ribs”, the examiner should
appropriately consider the application of relevant prior art
to the claims. In assessing the equivalency issue, the
examiner might consider appellants’ unabridged video showing
of not only a cleat with swirl or curved ribs but also a cleat
with mini-spikes (protrusions). Of course, should a rejection
be made under 35 U.S.C. § 103 the evidence of obviousness must
be weighed with appellants’ evidence of nonobviousness (the
commercial success showing of record).
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