Appeal No. 2004-0131
Application No. 08/462,531
Beginning on page 9 of the brief, appellant disagrees with
the examiner’s position. Appellant refers to the original
specification at page 108, lines 17-20, which provides the
following:
It should be noted that shoe soles using a
combination both of sole thickness greater than the
theoretically ideal stability plane and of midsole
densities variations like those just described are
also possible but not shown.
Appellant states that, thus, there is a clear disclosure of the
combination of a shoe sole with a greater thickness in a side
portion and a midsole with varying densities, in the original
specification.
Also, appellant relies upon the Stewart Declaration.
Appellant argues that Stewart states that a person of ordinary
skill in the art would immediately understand that the
application, as originally filed, disclosed a shoe sole, as shown
in Figs. 4-5 and 28, having side portions with greater
thicknesses, and also having a midsole, as shown in figures 6,
29, 30, and 32, wherein the midsole portion has density/firmness
variations. The selected thicknesses are implemented based upon
the theoretically ideal stability plane (degree of stability
desired). The selected firmness variations are implemented also
based upon the desired degree of stability. Brief, pages 13-14.
See also the Stewart Declaration, paragraphs 5-20. We also refer
to pages 8-28 of the brief, wherein the appellant provides a
detailed discussion on this point.
For the reasons set forth in the brief and the Declaration,
we agree with appellant’s position. We discuss several passages
of the original specification in support of our conclusion,
below.
We first refer to the original specification at page 108,
lines 17-20, as pointed out by appellant, supra, repeated below:
It should be noted that shoe soles using a
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