Appeal No. 2004-0253
Application 09/933,821
rounded portion of the inner midsole surface and said concavely
rounded portion of the outer midsole surface,” as set forth in
claim 21.
Looking to the examiner’s rejection of claims 21 through 34,
36, 37, 39, 44 through 47, 49, 50, 53, 55 through 57, 59 and 60
under 35 U.S.C. § 103(a) as being unpatentable over Landay in
view of Dassler, the examiner directs us to Figures 1 and 9a of
Landay, urging (answer, page 3) that Landay shows a shoe
comprising a bottom sole (12) and a midsole (14) with rounded
side portions, and a cushioning means (formed by 34)
substantially as claimed except for the exact means for
cushioning. To account for this perceived difference the
examiner turns to Dassler, contending that this patent teaches
forming cushioning means by providing an insert (14) fit
into a recess (13) internal of a sole (see figures 5 and
column 3 lines 49-51) (or the entire structure of elements
1, 5, and 14 which is interior to the peripheral midsole 18)
which inherently forms slits between all of the surfaces of
the insert (14) and the other adjacent sole elements.
The examiner then concludes that it would have been obvious “to
provide cushioning means as taught by Dassler ‘046 in the shoe of
5
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