Appeal No. 2004-0146
Application 09/851,911
next points out that Ellis teaches that the projections therein
can be of different shapes, and urges that it would have been an
obvious matter of design choice to make the projections in Ellis
of whatever form or shape desired or expedient, noting that a
change in form or shape is generally recognized as being within
the level of ordinary skill in the art, absent any showing of
unexpected results.
For the reasons aptly set forth on page 3 of the brief, we
agree with appellant that the examiner has failed to set forth a
prima facie case of obviousness with regard to the footwear of
independent claim 1 on appeal. More particularly, given that the
purpose in Ellis of providing enhanced flexibility to a shoe sole
so that it can more readily deform in parallel with the natural
deformation of a human foot is so distinctly different from
appellant’s reasons for forming and sizing the projections of
the presently claimed footwear to provide for ease of remov-
ability of the projections, we find no reason to conclude that
optimization of the size of the projections in Ellis by routine
experimentation to arrive at the desired goal of Ellis would
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