Appeal No. 2002-0363
Application No. 08/162,373
of Robinson with the concavely rounded portions, as taught by Bergmans, so that the
sole extends up over the sides of the upper to provide a very pleasing appearance (see
page 7 in the answer).
In response, the appellant argues that the modification to Robinson by the
application of Bergmans, as proposed by the examiner, is contradictory to the teaching
of Robinson to cover the sole with the vamp (see pages 23-25 in the main brief).
A prior art reference must be considered in its entirety, i.e., as a whole, including
portions that would lead away from the claimed invention. See W.L. Gore & Assocs.,
Inc. v. Garlock, Inc., 721 F.2d 1540, 1550, 220 USPQ 303, 311 (Fed. Cir. 1983), cert.
denied, 469 U.S. 851 (1984).
In this case, Robinson, considered in its entirety, would have led one of ordinary
skill in the art away from the modification proposed by the examiner in view of
Bergmans. Robinson explicitly teaches that it preferable to make the vamp lower edge
portions overlap most or all of the side edges of the reverse wedge (see column 2, lines
19-24). The stated purpose of this construction is to hide the reverse wedge and
provide the appearance of a conventional shoe (see column 1, lines 25-29 and column
2, lines 25-33). To extend the sole up over the sides of the upper to provide a pleasing
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