Appeal No. 2005-1051 6
Application No. 09/788,147
surface under the wearer’s weight and force of heel strike and
(2) the lower surface of the cushion to be spaced by the recessed
wall surface of the outsole “above the floor or ground surface at
all times” including when the cushion deforms and flows under the
wearer’s weight and force of heel strike.
The examiner’s finding that Schenkel’s insole 16 constitutes
a first cushion meeting these argued limitations is well taken.
While it is not disputed that the Schenkel insole 16 will
“deform” as recited in claim 1, the appellant contends that the
insole will not “flow” and that the examiner’s interpretation of
“flow” as meaning “to deform under stress without cracking or
rupturing” is improper:
[t]his use of the term “flow” is clearly inconsistent
with the manner in which this term is used in
Applicant’s specification, to refer to soft gelatinous
materials. A more appropriate definition is . . . “to
move with a continual change of place among the
constituent particles <the molasses flowed smoothly>.”
When the term “flow” is defined appropriately in light
of Applicant’s specification and its common meaning, it
is clear that the Schenkel insole cannot fairly be said
to flow [main brief, page 6].4
During patent examination claims are to be given their
broadest reasonable interpretation consistent with the underlying
4
4The appellant and examiner refer to an unspecified version
of “Webster’s Dictionary” for their respective definitions of
“flow.”
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