Appeal No. 2002-0955 Page 4
Application No. 09/511,921
Kilgore’s support elements 332 differ from an “ellipsoidal” shape by virtue of the
flattenings on top and bottom and the central top and bottom recesses. The
terminology “generally ellipsoidal,” however, encompasses not only ellipsoidal shapes
but also shapes which are close to ellipsoidal but differ to some degree from ellipsoidal.
Thus, the dispositive issue in the appeal of the rejection of claims 4, 21 and 24 is
whether these differences are of such a nature that Kilgore’s support elements 332
cannot reasonably be considered “generally ellipsoidal in shape.” For the reasons
which follow, we agree with the examiner that the claim terminology “generally
ellipsoidal in shape” as used by appellants is sufficiently broad to encompass the shape
of Kilgore’s support elements 332.
Consistent with Seattle Box Company, Inc. v. Industrial Crating & Packing, Inc.,
731 F.2d 818, 826, 221 USPQ 568, 573-74 (Fed. Cir. 1984), we look to appellants’
specification to see what is meant by “generally ellipsoidal.” With regard to this shape
limitation, appellants’ specification (page 6) informs us that
[t]he geometry of the shock-absorber elements 44 is also
important. The vertical and shear forces applied to the
shock-absorber elements 44 during use of an athletic shoe
often exceed twice the wearer’s body weight. Therefore, the
shape is preferably conducive to resisting these forces.
Shapes that allow the shock-absorber elements 44 to bend
or kink are undesirable, as bending or kinking would reduce
the resiliency and energy return of the system. Preferably,
each shock-absorber element 44 in horizontal cross-section
is generally circular in shape. More preferably, each shock-
absorber element 44 is generally ellipsoidal in shape and
more preferably is generally spherical in shape. A sphere or
ball-shaped shock-absorber element 44 provide improved
response to vertical and shear loading. The sphere will not
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