Appeal No. 2001-2217
Application 09/358,532
The examiner’s contention that it would have been obvious to
provide the Hale slipper with extra inserts or stiffening means 6
so that a worn insert may be replaced seems reasonable on its
face; however, as correctly pointed out by the appellant, the
examiner has failed to advance the requisite factual basis or
evidence to support this conclusion. The examiner’s general
allusion to “the references of record” in this regard is not
proper2 and is too vague and ambiguous to satisfy even the most
rudimentary principles of due process. In a similar vein, the
Potter, Mozayan and Schoesler secondary references fall far short
of curing Hale’s deficiencies with respect to the insert
characteristics set forth in dependent claims 2 through 8. As
accurately noted by the appellant, none of these secondary
references pertains to footwear having an insert, let alone
footwear having plural inserts.
Notwithstanding these flaws in the examiner’s position, the
Hale reference does in fact furnish an evidentiary basis
sufficient to support a conclusion of obviousness with respect to
2 Where a reference is relied on to support a rejection,
whether or not in a minor capacity, there is no excuse for not
positively including the reference in the statement of the
rejection. In re Hoch, 428 F.2d 1341, 1342 n.3, 166 USPQ 406,
407 n.3 (CCPA 1970).
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