Appeal No. 2005-1496
Application 09/994,439
II. The merits
Taber, the examiner’s primary reference, discloses an
athletic shoe 20 comprising an upper 22, an insole 24, a midsole
26 and a rubber outsole 28. For purposes of the appealed
rejection, the examiner focuses on the embodiment illustrated in
Figure 7 wherein “the upper 22 may be . . . fastened by tape 52
to the outsole 28” (column 2, lines 63 through 65).
It is not disputed that this prior art shoe responds to all
of the limitations in representative claim 1 except for those
requiring the midsole to be disposed “within” the outsole, the
midsole to be “contoured to approximate the shape of the sole of
a wearer’s foot,” and the foxing to be “fused” to the upper and
outsole along an interface therebetween “by application of a
vulcanization process.” In this regard, Taber shows midsole 26
as disposed on but not “within” outsole 28, does not describe
midsole 26 as being contoured, and does not convey the particular
manner in which tape or foxing 52 is affixed to the upper and
outsole along their interface to secure them together. To
account for these deficiencies, the examiner turns to Giese and
Campagna.
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