Appeal No. 2002-1080 10
Application No. 09/372,149
prior art teaches that pulp fibers would provide the advantages attributed thereto by the
examiner. As our court of review indicated in In re Fritch, 972 F.2d 1260, 1266 n.15, 23
USPQ2d 1780, 1783-84 n.15 (Fed. Cir. 1992), it is impermissible to use the claimed
invention as an instruction manual or “template” in attempting to piece together isolated
disclosures and teachings of the prior art so that the claimed invention is rendered
obvious, as the examiner appears to have done here.
In light of the foregoing, we shall not sustain the standing rejection of claim 5.
Claim 6
Claim 6 depends from claim 4 and adds that the plurality of layers includes a
corrugated layer. In rejecting claim 6, the examiner cites Kenji or Reed as examples of
footwear having corrugated insole layers. The examiner concludes that it would have
been obvious to one of ordinary skill to provide a corrugated insole layer in McCarthy in
order to gain the advantages taught by the tertiary references.
The examiner’s position is well taken. Kenji teaches (column 2, lines 20-28) that
a corrugated layer may be added between the foot and the sole of the footwear to
provide ventilation, and Reed teaches (column 2, lines 11-20) that a corrugated layer
may be added between the foot and the sole of the footwear to improve cushioning of
the foot. The provision of a corrugated layer in McCarthy to achieve either one of the
benefits would have been obvious.
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