Appeal No. 2002-0225 Page 10
Application No. 08/332,275
In the two rejections under 35 U.S.C. § 103 before us in this appeal, the
examiner determined (answer, pp. 5-6) that it would have been obvious to one having
ordinary skill in the art at the time the invention was made to have (1) secured Vibram's
insole to the tread sole with an adhesive as taught by Makovski, and (2) made Vibram's
insole and tread sole from either PVC, PU or rubber.
However, such modifications to Vibram would not have arrived at the claimed
invention since Vibram does not disclose a boot as set forth in our discussion above
with respect to the 35 U.S.C. § 102 (b) based on Vibram. Accordingly, a prima facie
case of obviousness has not been set forth by the examiner. Therefore, the decision of
the examiner to reject claims 23, 30, 31, 33 and 34 under 35 U.S.C. § 103 is reversed.
CONCLUSION
To summarize, the decision of the examiner to reject claims 19 to 21, 23, 25 and
26 under 35 U.S.C. § 112, second paragraph, is reversed; the decision of the examiner
to reject claims 17, 19 to 21, 25, 26 and 32 under 35 U.S.C. § 102(b) is reversed; and
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