Appeal No. 2004-0131
Application No. 08/462,531
frontal or transverse plane cross sections. Specification, page
56, lines 19-25. The exact material density of the shoe sole
sides will be determined empirically for individuals and groups
using standard biomechanical techniques of gait analysis to
determine those combinations that best provide the barefoot
stability. Specification, page 57, line 25 through page 58, line
3.
The examiner asserts that selecting a combination of density
and thickness is not supported by the specification. The
examiner, on page 4 of the answer, refers to the passage of the
specification found on page 108, lines 17-20, as a passage that
“provides no guidance/enablement as to how such a combination
would be made or how the ‘midsole‘ would be incorporated into the
sole.” The examiner focuses on the word “possible” in this
passage to suggest conjecture regarding this combination of
density and thickness. Answer, page 7.
In response, appellant, on page 11 of the brief, refers to
the Stewart declaration wherein it is pointed out that the
skilled person is aware that a shoe sole for an athletic shoe
generally contains an outersole and a midsole and that thus a
skilled person would conclude from a review of Figures 4-5 and 28
that the depicted shoe sole would include at least an outersole
and a midsole, even though these component parts of the shoe sole
are not explicitly shown in these figures. See paragraph 7 of the
Stewart declaration.
In response, on page 8 of the answer, the examiner argues
that the midsole does not contact the ground as disclosed and
shown in the figures. The examiner also argues that the Stewart
Declaration appears to be an opinion of one individual with no
factual basis. We disagree.
As pointed out on page 16 of the brief, the skilled person
need only take the midsole shown in Figure 6 and add a lower
-8-
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