Appeal No. 2002-1080 7
Application No. 09/372,149
We shall therefore sustain the standing rejection of claim 1 as being
unpatentable over the applied prior art. We shall also sustain the standing rejection of
claims 8 and 19 since appellant states (main brief, page 6) that claims 1, 8, and
19 stand or fall as a group.
Claim 2
Claim 2 depends from claim 1 and adds that the thickness of the cushion
member is in a range of about 1 mm to about 5 mm.
In rejecting this claim, the examiner asserts (answer, page 7), and appellant
does not expressly dispute,2 that it is known in the art of shoe making that the outsole
may vary in thickness from 1 mm to 10 mm. The examiner further asserts (answer,
page 8) that it is known in the art that the thickness of the various layers of the sole may
be varied to bring about certain desired results (e.g., wear resistance, impact
resistance). In addition, appellant states on page 5 of the reply brief that “a thinner
replacement member 90 [of Guarrera] would wear out more quickly than a thicker
replacement member 90” and that “one of ordinary skill in the art would have sought to
strike a balance between the replacement member 90 being too thin and wearing out
too quickly on one hand, and being too thick and thus unsightly, for example, on the
other hand.”
2Appellant’s statement on page 4 of the reply brief that “[t]he Examiner asserts,
without support, that it is well known that an outsole can be a thin layer in a range from
1 mm to 10 mm” does not expressly dispute the examiner’s assertion.
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