Appeal No. 2004-0146
Application 09/851,911
invention therein relates “generally to the structure of shoes”
(page 1, lines 4-5) and urged that the term “shoes” in the art
includes sandals or thongs, and concluded that it therefore would
have been obvious to provide the shoe sole as taught in Ellis as
part of a sandal or thong to provide traction to such footwear.
Appellant has challenged this position, contending that because
Ellis also notes that it particularly relates to “athletic
shoes,” it is absolutely clear to anyone of skill in the art that
Ellis teaches away from the consideration of a sandal or thong,
thereby defeating prima facie obviousness.
Like the examiner, it is our view that Ellis more broadly
addresses the construction of shoe soles in general and is not
only limited to the construction of athletic shoes, although
athletic shoes are clearly one particular type of shoe focused on
by the reference. In particular, we note that in paragraphs on
pages 2-3, Ellis broadly discusses the shortcomings of a “con-
ventional shoe sole” and mentions that the concepts of his
invention are applicable to both street shoes and athletic shoes.
In addition, Ellis specifically notes that it is a general object
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