Appeal No. 2005-2544
Application No. 09/328,749
smooth concave contour along the longitudinal axis,” as set forth
in independent claims 1, 21 and 26 on appeal. As for the
examiner’s position on page 16 of the answer that any shoe can be
used to pedal a bicycle and would thus meet the limitation of a
“cycling shoe” as set forth in claim 21 on appeal, we agree with
appellant’s comments on page 10 of the reply brief and further
direct the examiner’s attention to pages 1-3 of appellant’s
specification for an indication of the recognized special
characteristics of a “cycling shoe.”
For the above reasons, we agree that the examiner has failed
to make out a prima facie case of obviousness, and therefore will
not sustain the rejection of claims 1, 8 through 11, 15 through
17, 19 through 21, 24 and 26 under 35 U.S.C. § 103(a) as being
unpatentable over Anderie in view of Dubner and Kraeuter.
Nor will we sustain the examiner’s rejection of dependent
claims 2 through 4, 11 through 14 and 18 under 35 U.S.C. § 103(a)
as being unpatentable over Anderie in view of Dubner and
Kraeuter. Simply stated, nothing in the examiner’s explanation
of this rejection (answer, pages 7-8) overcomes the shortcomings
in the combined teachings of the applied patents as noted above.
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