Appeal No. 2004-0146
Application 09/851,911
wearer and the type of footwear being constructed” (answer,
pages 3-4). In this regard, the examiner further contends that
the size of the projections (the thickness
of the sole) is recognized in the art to
be a variable that is result effective.
Generally, it is considered to have been
obvious to develop workable or even optimum
ranges for such variables. For example,
see In re Aller, 220 F.2d 454, 105 USPQ 233
(CCPA 1955) and In re Boesch, 617 F.2d 272,
205 USPQ 215 (CCPA 1980). Since the
applicant has not demonstrated or even
alleged that the specifically claimed size
produces unexpected results, it is our
conclusion that it would have been obvious
for an artisan with ordinary skill to
determine a workable or even optimum size for
the projections and thereby arrive at the
size (i.e. length and width) as claimed by
the applicant (answer, page 4).
Concerning the requirements in dependent claims 4, 11 and 12
on appeal that there be a non-partitioned border surrounding the
matrix of projections (claim 4), and that each of the projections
of appellant’s footwear be either triangular in cross-section
(claim 11) or rectangular in cross-section (claim 12), the
examiner first points to a non-partitioned border surrounding
the matrix of projections in Figures 10A-10C of Ellis and urges
that to have used such a border with the embodiments seen in
Figures 11A, 11B of Ellis would have been obvious. The examiner
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