Appeal No. 2004-0253
Application 09/933,821
patent to the somewhat compressed and curved configuration in the
lower mold half (48) as seen in Figure 9a, although not loaded by
a wearer’s foot, must of necessity be placed under a load and
that the examiner’s assertions to the contrary are without merit.
Moreover, we agree with appellant’s assessment that the
examiner’s statement on page 5 of the answer that the formed shoe
in Landay is “clearly shown in figure [sic] 9 and 9a which shows
that when the shoe is completed the outsole and midsole are
curved/rounded at the periphery,” is wholly based on speculation
and conjecture, since the final configuration of the outsole (12)
and midsole (14) in the completed shoe of Landay, as viewed in a
frontal plane cross-section, after removal of the shoe from the
mold, cannot be determined from either Figure 1 or Figures 9 and
9a of that patent.
In addition, from our perspective, the examiner’s proposed
wholesale modification of the midsole of Landay in view of the
totally different midsole of Dassler in an effort to create a
sole structure that purportedly will “inherently” be responsive
to the shoe sole construction as set forth in appellant’s claims
on appeal is without merit and represents a clear case of
impermissible hindsight reconstruction of the claimed invention
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