Appeal No. 2004-1280 Page 6
Application No. 09/630,938
occurs because forces acting perpendicular to sole 118 deflect the extending portion
and tend to decrease the size of the peaks and valleys when a load is placed on the
extending portion.
Each of appellant’s claims recites a “generally planar” chassis. To understand
the meaning of “generally planar,” we look to appellant’s specification, which informs us
on page 8, in lines 1-5, that
[t]he chassis 2 is generally planar; however, the chassis 2
may be contoured to better conform to the shape of a foot.
For example, Figs. 1B-1D show the chassis 2 offset in an
arch region 17 to support a wearer’s arch. The chassis 2
may also have a three-dimensional shape. Examples of
three-dimensional elements are side elements 128 and lugs
or roots 130, described further in Figs. 2A-2G.
It is apparent from this disclosure that the chassis can include substantial non-planar
contours and protruding elements and still be considered “generally planar” as that
terminology is used by appellant. With this in mind, we do not agree with appellant that
the undulations of Tong’s extending portion render Tong’s insert member 120 non-
responsive to the “generally planar” limitation of appellant’s claims. This being
appellant’s only argument with respect to claims 1, 6-9, 19-21, 26-29 and 35, we shall
sustain the rejection with respect to these claims.
With respect to claim 4, to the extent that appellant is arguing on page 14 of the
brief that Tong lacks three elongated elements in the forefoot portion of the chassis, we
do not find this argument persuasive. The four fingers 122 of Tong’s insert member 120
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