Appeal No. 2006-1408 Page 3
Application No. 10/019,669
rejections and to the appellant's brief (filed August 3, 2005) and reply brief (filed
October 26, 2005) for the appellant's arguments thereagainst.
OPINION
In reaching our decision in this appeal, we have given careful consideration to
the appellant's specification and claims, to the applied prior art, and to the respective
positions articulated by the appellant and the examiner. As a consequence of our
review, for the following reasons, both of the examiner’s rejections must be reversed.
Darby ‘909 is directed to a medical shoe designed to accommodate forefoot
deformities and bulky dressings and more particularly to such shoes which are capable
of being adjustably contoured for cradling the bone structure of the foot during healing
(col. 1, ll. 5-10). The objective of the invention of Darby ‘909 is to provide a more stable
and protective shoe that supports the traumatized foot and accommodates the foot
when standard footwear cannot be worn due to dressing size, swelling, forefoot
deformities, or the use of bulky forefoot splints or insoles (col. 1, ll. 30-35). The Darby
‘909 shoe includes a rocker design outer sole 16 having an insole 18 bonded to the
upper surface 16A thereof by a thin layer of adhesive 20, with a metatarsal shank 22
molded integrally into the outer sole 16. The shoe also includes an upper 14 bonded to
the upper surface 16A of the outer sole and includes an open toe opening 31.
As conceded by the examiner, Darby ‘909 lacks the out sole having a
circumferential counter portion and a plurality of separably removable insole layers
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