Appeal No. 2004-0146
Application 09/851,911
would have recognized that the teachings of Ellis have broad
applicability to a variety of different shoe soles and in
particular to what is referred to as sole sections “like the
Maseur sandals” (page 12), a “conventional flat plane shoe sole”
(page 13), or a “conventional flat, roughly rectangular shoe
sole” (page 15). In this light, it is our view that one type of
well-known flat plane shoe sole which would have immediately
occurred to one of ordinary skill in the art is that of a sandal
or thong. Accordingly, we concur in the examiner’s ultimate
determination that it would have been obvious, within the meaning
of 35 U.S.C. § 103, to utilize deformation sipes and Ellis’
concept of a theoretically ideal stability plane in flat plane
shoe soles or flat, roughly rectangular shoe soles like those
conventionally seen on sandals or thongs. Thus, we will sustain
the examiner’s rejection of independent claim 16 under 35 U.S.C.
§ 103(a) as being obvious over Ellis.
The last of the examiner’s rejections for our review is that
of independent claim 15 under 35 U.S.C. § 103(a) based on the
combined teachings of Ellis and Berger. Claim 15 defines
11
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