Appeal No. 2002-0955 Page 7
Application No. 09/511,921
stiffness; if a compressive force is applied to Kilgore’s upper and lower plates 28, 30, in
a manner to move the plates toward one another, the entirety of the foam column 232
resists compression and thus resists such movement of the plates. Moreover, we see
no other structure in Kilgore’s shoe which appears capable of meeting the requirements
of the tension member called for in claims 26 and 28. We thus conclude that the
subject matter of these claims is not anticipated by Kilgore and shall not sustain
rejection (1) as to claims 26 and 28 or claims 29-31 which depend from claim 28.
Claim 27 calls for the shock-absorber element to include a through bore and
wherein the tension member extends through the bore. The examiner’s attempt to read
the tension member on the webs 238 of Kilgore’s support element 232 and to
characterize the support element 232 as including a through bore is unreasonable.
While the support element 232 does include upper and lower recesses extending
partway into the foam column and separated by the webs 238, we see no through bore
(bore extending through the element 232) in the element 232. Thus, we shall not
sustain rejection (1) as to claim 27.
Rejection (2)
Turning now to the rejection of claims 13 and 14 as being unpatentable over
Kilgore in view of Norton, the examiner (answer, page 6) has determined that Kilgore
discloses a shoe meeting all of the limitations of these claims with the exception of the
shock-absorber element on the medial side being stiffer than the ones on the lateral
side and appellants have not challenged this determination. While Kilgore broadly
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