Appeal 2007-1313
Application 10/162,098
statements; instead, there must be some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness”). However, “the
analysis need not seek out precise teachings directed to the specific subject matter
of the challenged claim, for a court can take account of the inferences and creative
steps that a person of ordinary skill in the art would employ.” Id.
ANALYSIS
Appellant argues claims 6-9 as a group. We select claim 6 as a
representative claim, and claims 7-9 will stand or fall with claim 6. 37 C.F.R.
§ 41.37(c)(1)(vii)(2006).
The Examiner found Gabrielli teaches all of the elements of claim 6 except
that Gabrielli does not specifically disclose the upper layer to be a rigid material
and the lower layer to be a resilient stretchable material (Answer 3). Appellant
contends that Gabrielli fails to disclose a tongue structure having an air space
between upper and lower layers when used in a boot, because Gabrielli teaches to
fill its air space with a liquid material which becomes vulcanized elastomer (Br. 4).
Claim 6 recites “A tongue structure for use in boot, said tongue structure
comprising … said upper layer being spaced from said lower layer intermediate
said side marginal edges to thereby provide an air space between said upper and
lower layers.” Gabrielli’s tongue structure includes an air space between the upper
and lower layers during manufacture, prior to injection of the silicone between the
layers (FF 3). Claim 6 further recites that “when said tongue is used in a boot, the
foot of a user will contact said lower layer with said upper layer being spaced
6
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Last modified: September 9, 2013