Appeal No. 2002-0394 Page 4
Application No. 09/169,074
Hanson is directed to a ski boot. The examiner’s characterization of Hanson is
set forth in the paragraph bridging pages 3 and 4 of the answer. We share appellants’
view (brief, page 6) that the examiner has erred in considering the vamp 14, by itself or
in combination with the beam 30, of Hanson’s ski boot to be a “highback” as that term is
understood in the art and as described in appellants’ specification (page 1, lines 19-25).
Furthermore, neither lateral adjustment of the cuff members 40, 42 using horizontal
screw 36 nor adjustment of the screw 50 (or the knurled knob 51' fixed to the outer end
of threaded member 50') will affect the stiffness of either the beam 30 or the vamp 14.
Rather, lateral adjustment of the cuff members 40, 42 permits legs of different width to
be accommodated (column 4, lines 1-4) and adjustment of the screw 50 or threaded
member 50' provides a forward thrust on the rear portion of the liner 28, thereby
providing a snugger fit (column 4, line 57, to column 5, line 25).
In any event, Hanson provides absolutely no suggestion to modify the highback
of Phillips by providing a tension adjustment control device to control the stiffness of the
highback to increase rider comfort, as the examiner asserts on page 4 of the answer.
Rejections based on 35 U.S.C. § 103 must rest on a factual basis. In making such a
rejection, the examiner has the initial 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
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