Appeal No. 2002-0955 Page 8
Application No. 09/511,921
teaches providing the support elements with various heights, positions or densities to
tune the cushioning of the shoe to a desired level of stiffness for a selected range of
forces while providing maximum rearfoot control (see, e.g., column 10, lines 20-22, and
column 11, lines 6-15), Kilgore does not specifically teach positioning of the support
elements or varying their densities, and thus stiffness, so that the medial side of the
sole is stiffer than the lateral side. Norton, however, does provide a motivation, namely,
improved motion control and reduced compression for an individual that tends to
pronate or hyperpronate (column 6, lines 42-48), for tuning Kilgore’s support elements
such that the medial side of the sole is stiffer than the lateral side thereof. We thus find
reasonable the examiner’s determination with respect to the combination of Kilgore and
Norton. In that appellants’ only argument with respect to the patentability of claims 13
and 14 over the applied prior art is lack of motivation to combine the references as
proposed by the examiner (brief, pages 20-21) and we find such motivation, as
discussed above, we shall sustain the examiner’s rejection of claims 13 and 14 as
being unpatentable over Kilgore in view of Norton.
Rejection (3)
We shall not sustain the examiner’s rejection of claims 4, 21 and 24, or claims 5,
23, 25 and 26 which depend therefrom, as being anticipated by Luthi. Simply stated,
the examiner’s attempt to read the shock-absorber elements being “generally ellipsoidal
in shape” (or “generally spherical in shape” as in claims 5 and 23) limitation of these
claims on Luthi’s heel tubes 26 is unreasonable on its face. Luthi’s heel tubes 26 do
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