Appeal No. 2002-1082 Page 4
Application No. 09/474,179
not appear reasonable to us. To the extent that the abutment of both the toe support
44 and the short shank 50 against the forward end of the inner sole 62 prevents
rearward movement of the toe support, it is the inner sole 62, not the short shank 50,
which prevents such movement. The only stated function of the short shank 50 is to
cooperate with the toe support 44 to provide a support enabling the wearer to stand on
his or her toes. Hansen provides no indication that the short shank 50 will serve to
prevent rearward movement of the toe support 44.
In light of the above, we conclude that the examiner has failed to set forth a
prima facie case that the subject matter of claim 10, or claims 15 and 17 which depend
therefrom, is anticipated by Hansen. Thus, this rejection will not be sustained.
As for the examiner’s obviousness rejection of claims 11-14, 16 and 18-20 which
depend from claim 10, even if the examiner is correct that it would have been obvious
to make the modifications proposed therein, this would still not cure the deficiency of
the Hansen shoe discussed above. Accordingly, we also shall not sustain this rejection.
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