Appeal No. 2004-0136 Page 6
Application No. 09/761,340
“forward-lean system,” and therefore cannot anticipate the subject matter recited in the
claims, all of which recite that limitation. The appellants assert on page 2 of the Brief
that “forward-lean system” is
a term of art recognized by persons skilled in the art and is applied to a
device arranged to provide a controlled amount of forward-lean in a boot,
i.e., meaning the portion of the boot around the lower leg is controlled
either to increase or reduce the angle of leaning.
The appellants have not directed us to such a definition in the specification, nor have
they provided evidence from other sources that this is the definition that one of ordinary
skill in the art would attach to the phrase “forward lean system.” Furthermore, we note
on page 4 of the specification the statement that an object of the appellants’ invention is
“to provide an improved snowboard boot with adjustable forward lean” (emphasis
added), which would imply that boots are known in the art which provide non-adjustable
forward lean to the lower portion of the leg. Further in this regard, on record in the
application file (with Paper No. 16) is a declaration of Anthony Derocco, dated January
3, 2003, in which the declarant states that the three references cited against the claims
do not have forward lean systems. However, the declaration does not explain why the
claimed boot is a “forward lean” boot while the three references are not, and therefore
we find it not to be entitled to sufficient weight to refute the examiner’s position, which is
that the references disclose “forward lean” systems because the boots impart forward
lean to the wearer’s lower leg.
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