Appeal No. 2004-0107 Page 8
Application No. 09/963,122
either of the applied references, nor has the examiner proffered any evidence from
other sources to support his assertion. Furthermore, even considering, arguendo, that
it would have been obvious to add a rubber layer to the APA soccer shoe to make it
waterproof, there is no basis in the record for concluding that such a rubber layer
inherently would meet the other limitations of the claim regarding touch, repulsive force,
and protection from pain so as to balance touch and elasticity to achieve specific goals,
especially when considering that the factors are not recognized in the applied
references.
It therefore is our opinion that the combined teachings of APA and Dreschler fail
to establish a prima facie case of obviousness with regard to the subject matter of claim
13, and we will not sustain the Section 103 rejection of claim 13 or, it follows, of claims
14 and 16-18, which depend therefrom.
Claim 15, which depends from claim 13, stands rejected as being unpatentable
over APA in view of Dreschler and Nyhagen, the latter being cited for teaching providing
perforations in rubber overshoes to “allow for the air trapped between the shoe and the
cover member to escape so the cover member can better adapt to the size and shape
of the shoe” (Answer, page 7). We first point out that there is no such teaching in
Nyhagen. However, be that as it may, consideration of the teachings of Nyhagen fails
to alleviate the shortcomings discussed above in combining APA and Dreschler, and we
will not sustain this rejection.
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