Appeal No. 2004-0146
Application 09/851,911
not appear from a perusal of the drawings of this patent that the
matrix of projections on the shoe sole therein has a density of
packing wherein the projections (46) are “immediately adjacent to
one another if not touching,” as in appellant’s claim 1 on
appeal, we note that the sizing and center-to-center spacing of
the projections disclosed in the Taber patent and as set forth in
claim 1 thereof, in particular, would appear to fall within
appellant’s broadly claimed size ranges and result in a densely
packed matrix of projections like that claimed by appellant.
Moreover, since the projections in Taber are of an equivalent
size to those claimed by appellant and formed of rubber or
neoprene, it would appear that they are inherently removable,
thereby enabling a user to remove a subset of the projections
corresponding to a desired personalized imprint, although no such
express disclosure appears in the Taber patent. The examiner may
also wish to revisit the Ellis references of record and consider
the sizing of the projections therein when the size limitation of
appellant’s claim 1 is viewed through the prism of In re
Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
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