Appeal No. 2002-0955 Page 9
Application No. 09/511,921
not even remotely resemble ellipsoids or spheres and thus are not “generally
ellipsoidal” or “generally spherical” in shape.
As for claim 28, the examiner’s position, as expressed on page 5 of the answer,
that the plates on one side of Luthi’s shoe can be compressed on one side and the
tension member (heel tube) on the other side will not resist movement of the force
distribution plates toward one another, thus responding to the “adapted and configured
so as not to resist movement of the force distribution plates toward one another when
the sole is compressed in a manner to move the force distribution plates toward one
another” language of claim 28, is untenable. As explained by Luthi in column 5, lines 8-
10, the heel tubes 26 “have the characteristics of springs and therefore have a
measurable spring constant.” As such, they inherently provide some resistance to
movement of the upper and lower plates (surfaces 16, 18) toward one another,
regardless of the point of application of force of the plates toward one another. Thus,
we shall not sustain rejection (3) as to claim 28 or claims 29 and 30 which depend from
claim 28.
We shall, however, sustain the rejection of claims 13-15 as being anticipated by
Luthi. The only argument proffered by appellants (see brief, pages 16-17) as to why
the subject matter of these claims is not anticipated by Luthi is that the tubular portions
of the Luthi midsole are not “discrete” as required by claims 13-15. The “discrete”
limitation to which appellants refer is found in claim 1, from which each of claims 13-15
ultimately depends. Specifically, claim 1 calls for “at least two discrete resilient shock-
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