Appeal No. 2004-0131
Application No. 08/462,531
1/3 of the footwear and it appears that from figure 7 that at
least the front portion of the heel area does not have a groove H
therein.” Answer, pages 9-10. The examiner then relies upon the
teachings of the secondary references for any misgivings found in
the Hlustik. Anwser, pages 9-10.
We find that the examiner does not adequately explain how in
fact, the sole of Hlustik satisfies each recited aspect of
appellant’s claims 2 and 17, outlined on pages 36 and 37 of
appellant’s brief.
Furthermore, we find that the disclosure of Stewart does not
teach appellant’s claimed invention of “a midsole comprising a
first midsole portion located completely on one side of a
centerline of said midsole, said first midsole portion having a
first density or firmness, and a second midsole portion located
completely on another side of a centerline of said midsole, said
second midsole portion having a second density or firmness which
is different than the density or firmness of said first midsole
portion, as viewed in said heel portion frontal plane cross-
section when the shoe sole is upright and in an unloaded
condition”. Stewart does not teach different density on each
side of the centerline; rather, Stewart teaches that section 42
on each side has the same density and that section 44 on each
side has the same density. This is not a teaching that one side
has a different density that the other side. Hence, assuming
arguendo, that Hlustik in view of Pasternak or Novitske, meets
all the other claim limitations (which we are unconvinced that
these references do so), Stewart does not cure the deficiency
regarding midsole density variations as claimed.
For the reasons discussed above, we reverse the 35 U.S.C.
§103 rejection.
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