Appeal No. 2004-1280 Page 8
Application No. 09/630,938
examiner takes the position that it would have been obvious to one of ordinary skill in
the art to use polymeric materials for the chassis (bottom A) of Trolle’s article of
footwear in light of their known use and suitability as protective materials in soles of
footwear as evidenced by Barma. We agree with the examiner. The selection of a
known material based upon its suitability for the intended use is a design consideration
within the skill of the art. In re Leshin, 227 F.2d 197, 199, 125 USPQ 416, 418 (CCPA
1960).
Appellant argues that Trolle’s shoe bottom A is actually an outsole and thus is
not a “chassis” as called for in appellant’s claim 26. We find this argument
unpersuasive for the reason discussed above with regard to the rejection of claims 26,
29 and 30 as being anticipated by Crowley.
Appellant also argues that Barma teaches away from Trolle because Barma
relies on protective plates added to a rubber boot, whereas Trolle employs a metal shoe
sole to accomplish the same function. Consequently, according to appellant, “there is
no need to employ the [Barma] protective plates in a shoe having a metal sole that by
itself protects the wearer’s foot” (brief, page 24). This argument does not appear to
address the modification proposed by the examiner. The examiner has not proposed
adding protective inserts to Trolle’s shoe bottom but, rather, making Trolle’s shoe
bottom of rigid plastic rather than metal. As discussed above, we agree with the
examiner that Barma’ teaching of the interchangeability of metal and plastic in footwear
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