Appeal No. 2004-0146
Application 09/851,911
explanation as to why projections of appellant’s claimed
dimensions are necessarily present in the footwear of Ellis.
Thus, the examiner has not made out a prima facie case of
anticipation based on the disclosure of Ellis.
In light of the foregoing, we will not sustain the exami-
ner’s rejection of claims 1, 3, 4, 13 and 14 under 35 U.S.C.
§ 102(b) as being anticipated by Ellis.
Regarding the examiner’s various rejections of claims 1, 3,
4, 11 through 14 and 16 under 35 U.S.C. § 103(a) as being
unpatentable over Ellis, the examiner has urged with respect to
appellant’s independent claim 1 that even if Ellis does not teach
or disclose projections having the dimensions claimed, the
selection of a suitable size for the projections formed by the
intersecting slits (151) seen, for example, in Figure 11A of
Ellis, “would appear to constitute no more than optimization of
size by routine experimentation inasmuch as a number of thickness
[sic] would appear to be suitable depending on the individual
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