Appeal No. 2004-0131
Application No. 08/462,531
Stewart for teaching the claimed density variation in the
midsole. Answer page 6.
Appellant’s position in connection with this rejection is
set forth on pages 35-39 of the brief. We refer to this part of
the brief regarding appellant’s position.
It is disputed whether Figure 6 of Hlustik is a frontal
plane cross section at the heel portion of a shoe (as depicted,
for example, in appellant’s figure 5). Appellant states that
groove H (depicted in Hlustik’s figure 7) is not depicted in
Hlustik’s figure 6. Appellant states that col. 32, lines 5-9, of
Hlustik indicates that the heel portion of the shoe is formed
with a peripheral groove H. Appellant concludes that figure 6
therefore cannot be a frontal plane cross-section in the heel
area of Hlustik. As a result, appellant argues that numerous
features of claims 2 and 17 are not taught in Hlustik. Brief,
page 35.
On page 37 of the brief, appellant states that the groove H
in Hlustik suggests that the outer midsole surface of the midsole
L1 of Hlustik includes a convexly rounded portion on the midsole
sides which is the exact opposite of the claimed concavely
rounded portions of the outer midsole surface of the midsole as
recited in claims 2 and 17. Appellant also states that to form
the peripheral groove H in the heel area of the midsole L1 of
Hlustik would require a reduction in the sole thickness in this
area, which again teaches away from the feature of the present
invention that requires an increase in the sole thickness on the
side of the shoe sole in the heel area.
We find that the examiner is not fully responsive to
appellant’s aforementioned arguments. Answer, pages 9-11. The
examiner does not specifically comment on appellant’s argument
regarding figure 6 of Hlustik. The examiner does refer the
figure 7, and states that figure 7 “may be considered to be rear
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