Appeal No. 2004-1280 Page 11
Application No. 09/630,938
extending substantially along an entire length of a heel portion and toe portion of the
article of footwear, appellant’s only arguments are that Lorenzi is non-analogous art to
appellant’s invention and that Lorenzi’s stiffening plate is not “generally planar” as called
for in the claim. With respect to the first argument, inasmuch as both appellant’s
invention and Lorenzi are directed to footwear and are thus within the same field of
endeavor, Lorenzi’s boot is analogous art to appellant’s invention. As to the second
argument, for the reasons discussed above, the terminology “generally planar” is
interpreted, in light of the specification, as encompassing structures having substantial
non-planar contours and protruding elements. Lorenzi’s stiffening plate is thus
considered “generally planar” as used in appellant’s claim 26. Finding neither of
appellant’s arguments persuasive, we shall sustain the rejection of claim 26 as being
unpatentable over Lorenzi.
Claim 27 depends from claim 26 and further recites at least one elongated
element extending toward a toe portion from the midfoot portion. Lorenzi’s central
tongue 5 appears to meet this additional limitation. The rejection of claim 27 as being
unpatentable over Lorenzi is thus sustained.
As to claim 29, which depends from claim 26 and further recites that the sole is
an outsole, inasmuch as the stiffening plate 4 of Lorenzi appears to be part of an
outsole, Lorenzi meets this additional limitation. The rejection of claim 29 as being
unpatentable over Lorenzi is thus also sustained.
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