Appeal No. 2005-1051 7
Application No. 09/788,147
specification without reading limitations from the specification
into the claims. In re Prater, 415 F.2d 1393, 1404-05, 162 USPQ
541, 550-51 (CCPA 1969). Even under the definition of “flow”
advanced by the appellant, Schenkel’s resilient and shock-
absorbing insole 16 will deform and “flow” toward the floor or
ground surface under the wearer’s weight and force of heel strike
as recited in claim 1 when the forces applied by the user’s foot
cause it to compress and bulge downwardly through the cutouts in
the frame. The appellant’s attempt to equate the claimed “flow”
to that of a gelatinous material is an improper reading of
limitations from the specification into the claim. Furthermore,
Schenkel’s Figures 6 and 8, which show the insole 16 acted upon
by the forces applied by a foot, provide a reasonable basis for
the examiner’s determination that the lower surface of the insole
or cushion will 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. Hence, the appellant’s position
that the subject matter set forth in claim 1 distinguishes over
that disclosed by Schenkel is not persuasive.
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