Appeal No. 2004-1280 Page 13
Application No. 09/630,938
away2 from extending the insert along the entire length of the shoe as called for in each
of the rejected claims.
We have reviewed the additional teachings of Kendall, Crowley, Cameron and
Barre but find nothing therein which would cure the above-noted deficiency of the
combination of Giese in view of Tong or Giese in view of Brown and Thomas. It follows
that we also shall not sustain the rejections of claim 11 as being unpatentable over
Giese in view of Tong or Brown and Thomas and further in view of Kendall, claims 26-
30 and 35-38 as being unpatentable over Giese in view of Tong or Brown and Thomas
and further in view of Crowley and claims 30 and 31 as being unpatentable over Giese
in view of Tong or Brown and Thomas and further in view of Cameron or Barre.
CONCLUSION
To summarize, the rejection of claims 26, 29 and 30 as being anticipated by
Crowley is sustained and the rejection of claims 1, 4-9, 19-21, 26-29 and 35 as being
anticipated by Tong is sustained as to claims 1, 4, 6-9, 19-21, 26-29 and 35 and
reversed as to claim 5. The rejection of claims 26 and 29-31 as being unpatentable
over Trolle in view of Barma is sustained. The rejection of claims 1, 4, 6-10, 19 and 26-
29 as being unpatentable over Lorenzi is sustained as to claims 26-29 and reversed as
to claims 1, 4, 6-10 and 19. The rejections of claims 1, 5, 6, 8-10, 12-23 and 39 as
2 “A reference may be said to teach away when a person of ordinary skill, upon [examining] the
reference, would be discouraged from following the path set out in the reference, or would be led in a
direction divergent from the path that was taken by the applicant.” In re Gurley, 27 F.3d 551, 553, 31
USPQ2d 1130, 1331 (Fed. Cir. 1994)
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