Appeal No. 2002-1080 4
Application No. 09/372,149
(Fed. Cir. 1997). See also, In re Sneed, 710 F.2d 1544, 1548, 218 USPQ 385, 388
(Fed. Cir. 1983). Here, appellant’s specification indicates that foot protector 100 “has
enough resilience, or cushion effect, to provide comfort to the foot of the wearer” (page
4, lines 8-9). Consistent with this disclosure, and in keeping with the circumstance that
the word “cushion” may mean “something resilient used as a rest, support, or shock
absorber,”1 we conclude that the term “cushion member” as used in appellant’s claims
encompasses a rubber sole that supports a user’s foot such as the sole 10 of
McCarthy.
As to the claim requirements that the cushion member is of substantially uniform
thickness and does not have a thickened heel portion, the examiner’s conclusion that
Guarrera would have suggested providing McCarthy with a sole member of such
configuration, thereby arriving at the subject matter recited in claim 1, is well founded.
Guarrera is directed to a “do-it-yourself” repair unit for footwear. Figures
1 and 3 of Guarrera teach that the repair unit 24 may comprise a one piece outsole
18 having an integrated heel portion 28 of increased thickness relative to the forward
portion 26 of the outsole to provide a distinct heel. On the other hand, Figures 7 and
8 of Guarrera teach that the repair unit 90 may comprise a one piece outsole of uniform
thickness with a flat ground contacting surface and no distinct heel portion. Thus,
1Webster’s II New Riverside University Dictionary, Riverside Publishing
Company, copyright © 1984 by Houghton Mifflin Company.
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