Appeal No. 2005-1051 8
Application No. 09/788,147
Accordingly, we shall sustain the standing 35 U.S.C.
§ 102(b) rejection of claim 1 as being anticipated by Schenkel.
We also shall sustain the standing 35 U.S.C. § 102(b)
rejection of dependent claims 2 through 6, 8, 11, 13 through 15
and 17 as being anticipated by Schenkel since the appellant has
not challenged such with any reasonable specificity, thereby
allowing these claims to stand or fall with parent claim 1 (see
In re Nielson, 816 F.2d 1567, 1572, 2 USPQ2d 1525, 1528 (Fed.
Cir. 1987)).
We shall not sustain, however, the standing 35 U.S.C.
§ 102(b) rejection of claims 22, 23 and 26 as being anticipated
by Schenkel.
Schenkel does not meet the limitations in independent claim
22 (from which claim 23 depends) requiring a cut-out portion in a
sidewall of the outsole and a second cushion shaped to deform
outwardly at this cut-out portion. The Schenkel reference does
not show or describe any such cut-out portion.
Schenkel also fails to meet the limitation in independent
claim 26 requiring the first cushion to comprise a polymeric
gelatinous material. The examiner’s position that Schenkel’s
cushion or insole 16 is gelatinous merely because it protrudes or
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