Appeal No. 2002-1080 6
Application No. 09/372,149
replacement member 90 as corresponding to one another. In addition, while it is
certainly true that Guarrera’s Figures 7-8 “wedgee” type shoe embodiment includes
built up heel portion 84 upon which the foot rests, appellant’s emphasis of this
circumstance misses the point that the built up heel is simply the result of the particular
construction for midsole layer 80 required to give the Figure 7 shoe its distinctive
“wedgee” appearance.
The test for obviousness is what the combined teachings of the references would
have suggested to those of ordinary skill in the art. In re Keller, 642 F.2d 413, 425, 208
USPQ 871, 881 (CCPA 1981). Moreover, in considering the prior art, one skilled in the
art is not compelled to blindly adopt every aspect of the prior art teachings without the
exercise of independent judgement. See Lear Siegler, Inc. v. Aeroquip Corp., 733 F.2d
881, 889, 221 USPQ 1025, 1032 (Fed. Cir. 1984). In the present case, Guarrera
constitutes evidence of the conventional use of a uniform thickness outsole that
includes a flat ground contacting surface that does not have a distinct heel portion
(Figures 7 and 8) as an alternative to an outsole having a distinct thickened heel portion
(Figures 1 and 3), and justifies the examiner’s conclusion of obviousness with respect
to the subject matter of claim 1. In this regard, the artisan would have readily
appreciated the uniform thickness flat bottom outsole construction disclosed by
Guarrera in Figures 7 and 8 as an art-recognized alternative to the construction
disclosed by McCarthy.
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