Appeal No. 2005-1051 9
Application No. 09/788,147
bulges downwardly through the cutouts in the frame 18 is not
reasonable.
II. The 35 U.S.C. § 102(b) rejection of claims 1, 4 through 6,
11, 12, 15, 17 and 26 as being anticipated by Fuerst
Fuerst discloses a shoe sole 12 comprising an insole 18, an
outsole 16 having openings 28 and 30 at the ball and heel of the
foot, a midsole 20 having cavities 46 and 48 aligned with the
openings in the outsole, and polyurethane inserts 50 and 52
disposed in the cavities and having dome-shaped portions 58
extending into the openings. Fuerst teaches that
[t]he dome-shaped portion 58 has a height less than the
thickness of the outer sole and does not engage the
floor or ground until sufficient weight is applied to
it by the weight of a player, at which time it will
assume the configuration shown in phantom outline in
FIG. 5. [column 3, lines 24 through 29].
The foregoing passage belies the examiner’s finding that the
polyurethane inserts 50 and 52 constitute cushions meeting the
recitations in independent claims 1 and 26 of a cushion having a
lower surface 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. Fuerst also fails to meet the gelatinous material
limitation in claim 26.
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