Appeal No. 2003-0598
Application 09/172,830
in either case, whether construed under § 112, ¶ 6, or not, the
“interlocking surface means” recitation in claim 1, read as it is
required to be in light of the underlying specification, sets out
and circumscribes a particular area with a reasonable degree of
precision and particularity.
Accordingly, we shall not sustain the standing 35 U.S.C.
§ 112, second paragraph, rejection of claims 1 through 3, 5, 8
and 9.
III. The prior art rejections
Each of the prior art rejections on appeal rests on a
finding by the examiner that the respective references applied in
support of the rejections disclose boots meeting the
“interlocking surface means” limitation in claim 1. Implicitly
acknowledging that none of the references expressly describes
such an interlocking surface means, the examiner predicates these
findings on principles of inherency, i.e, on a determination that
each reference discloses structure which is inherently capable of
functioning as an interlocking surface means which interlocks
with a binding of an alpine ski or in-line roller skate thus
firmly fixing the first rigid part of the sole against flexing
with respect to the flexible portion of the sole. Simply put,
none of the applied references provides a reasonable factual
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