Appeal No. 2004-0146
Application 09/851,911
transparent portions, as taught in Berger, to permit viewing of
the toes of the wearer within the shoe so as to determine whether
the shoe has become too small. Appellant contends that there is
no teaching or suggestion to make the modification of Ellis
proposed by the examiner and that the examiner’s justification
for doing so is clearly not the justification appellant recites
in claim 15.
We share the examiner’s view that there is ample suggestion
in the combined teachings of Ellis and Berger for making at least
some portions of the shoe sole in Ellis transparent, as taught in
Berger, so that it can readily be determined by looking through
the transparent portions if the shoes are becoming too small for
the wearer. As for appellant’s assertion that the examiner’s
justification for the combination is not that of appellant, we
observe that it matters not that the reason for combining the
teachings as noted above is not exactly the same as appellant’s
reason for providing that feature or modification. The law is
clear that the purpose proposed as the reason why an artisan
would have found the claimed subject matter to have been obvious
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