Appeal No. 2001-2217
Application 09/358,532
art feature of replaceable shoe components such as
inner soles, cleats, heels etc to provide more than one
insert to replace the originals. Claim 1 requires no
more. Also, providing inserts with a hollow portion
filled with sand, fluid, spherical objects or any other
material which are all interchangeable for
conditioning, massaging and circulating of the blood in
the feet is so old and conventional in this art as to
hardly require citation of a reference. However,
Potter, Moza[yan] and Schoesler are cited merely as
examples of this common practice. These references
each disclose a hollow portion in a shoe sole
containing a variety of filings, [sic, fillings] each
with purported desirable effects such as massaging,
reduction of pressure, cushioning etc. Therefore, it
would have been obvious to one having ordinary skill in
the art and in view of any one of Potter, Moza[yan] and
Schoesler to provide inserts with hollow portions
filled with different materials in the slipper of Hale
to provide better comfort, massaging and cushioning
effects to the feet of the wearer. While it is
submitted that the secondary references are not needed
to reject claim 1, they have been left in because
applicant’s attorney has argued, and continues to
argue, that claim 1 requires two inserts which are
different [answer, pages 3 and 4].
Rejections based on 35 U.S.C. § 103 must rest on a factual
basis. In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 177-78
(CCPA 1967). In making such a rejection, the examiner has the
duty of supplying the requisite factual basis and may not,
because of doubts that the invention is patentable, resort to
speculation, unfounded assumptions or hindsight reconstruction to
supply deficiencies in the factual basis. Id.
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