Appeal No. 2004-1280 Page 7
Application No. 09/630,938
clearly respond to this limitation. The rejection is sustained with respect to this claim as
well.
We shall not, however, sustain the rejection of claim 5 as being anticipated by
Tong. Simply stated, the examiner’s position that the valleys 130 of the undulations of
Tong’s extending portion 124 respond to the “at least one indentation along a width of
the chassis” (answer, page 10) is untenable.
The examiner has rejected claims 26 and 29-31 as being unpatentable over
Trolle in view of Barma. Trolle discloses footwear, such as shoes or boots intended for
use by persons “who require footwear which will withstand rough usage and protect the
feet against moisture, cold, briers, rocks, stones and their effects” (page 1, lines 52-55).
The shoe comprises a “shoe bottom” or sole A connected to an upper B. According to
Trolle, the bottom is preferably made of metal and the upper is preferably made of
leather, but “any other suitable materials may be employed for these parts” (page 2,
lines 13-15). The examiner has determined that either ground engaging member C or
ground engaging member D responds structurally to the “at least one cleat” recited in
claim 26 and appellant does not take issue with that determination. The examiner
concedes that Trolle’s article of footwear differs from the article of claim 26 in that the
sole does not comprise a polymeric chassis. Relying on the teachings of Barma of the
interchangeability of metal and plastic, such as PVC or fiberglass, for use in protective
inserts in the soles of safety boots worn in hazardous environments, however, the
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