Appeal No. 2005-1496
Application 09/994,439
In the present case, Giese’s description of the cushioning
and stability benefits afforded by (1) the contoured upper
surface of soft upper layer 3 (which effectively constitutes a
midsole) and (2) the shell configuration of outsole 5 would have
provided the artisan with ample suggestion or motivation to so
contour and configure Taber’s midsole 26 and outsole 28,
respectively. Moreover, Campagna’s use of a vulcanization step
to affix foxing 9 would have provided the artisan with ample
suggestion or motivation to utilize this conventional technique
to effect the fixing of Taber’s tape or foxing 52 to upper 22 and
outsole 28 to secure them together. Hence, the appellants’
hindsight arguments are not persuasive.
As so modified in view of Giese and Campagna, the shoe
disclosed by Taber would respond to all of the limitations in
claim 1. Thus, the combined teachings of these references
justify the examiner’s conclusion that the differences between
the subject matter recited in this claim and the prior art are
such that the subject matter as a whole would have been obvious
at the time the invention was made to a person having ordinary
skill in the art. We shall therefore sustain the standing 35
U.S.C. § 103(a) rejection of representative claim 1, and claims 2
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