Appeal No. 2005-1051 10
Application No. 09/788,147
Consequently, we shall not sustain the standing 35 U.S.C.
§ 102(b) rejection of independent claims 1 and 26, and dependent
claims 4 through 6, 11, 12, 15 and 17, as being anticipated by
Fuerst.
III. The 35 U.S.C. § 103(a) rejection of claims 1 through 4, 11,
15 and 26 as being unpatentable over Preston in view of Fuerst.
For the reasons expressed above, the examiner’s reliance on
Fuerst to overcome the admitted failure of Preston to respond to
the limitations in independent claims 1 and 26 requiring 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 strike5 is unsound. The
combined teachings of Preston and Fuerst also lack response to
the gelatinous material limitation in claim 26.
Accordingly, we shall not sustain the standing 35 U.S.C.
§ 103(a) rejection of independent claims 1 and 26, and dependent
claims 2 through 4, 11 and 15, as being unpatentable over Preston
in view of Fuerst.
5 Preston expressly teaches that the lower surface 25 of
shock absorber body or cushion 23 contacts the walking surface
when the weight of the body is applied thereto (see column 2,
lines 30 through 53).
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