Appeal 2007-2027
Application 10/210,269
plurality of open interstices (56) across the face, whereby said primary
portion 12 extends into said interstices in said hard portion across said face”
(id. at 4). The Examiner concedes that “Lukens does not specify that the
primary portion of the athletic cup ha[s] gas pockets formed in the
thermoplastic” (id.).
To meet this deficiency, the Examiner cites Jacobs as disclosing “a
bodily protective device made of a ‘resilient composition having gas pockets
therein to increase attenuation and dampening of shocks or blows applied
thereto’” (id., quoting Jacobs, col. 3, ll. 32-36). The Examiner concludes
that one of ordinary skill would have considered it obvious to provide
Lukens’ cup with a “thermoplastic primary portion . . . [with] gas pockets
therein, as taught by Jacobs et al., to increase attenuation and dampening of
shocks and blows applied thereto” (id.). We agree with the Examiner’s
prima facie case of obviousness.
Appellant argues that “[t]he holes of Lukens do not create a cage-like
structure because the holes are for the purpose of ventilation and do not
describe an open cage as set forth in claim 1” (Br. 5).2 Appellant concludes
that “[t]here is nothing in this reference or any other that would lead one
skilled in the art to enlarge the ventilation holes or logo contrary to the
reference's teachings to make a cage-like structure” (id. at 5). Appellant
urges that the prior art does not suggest modifying Lukens’ cup “to have the
interstices over the entire face of the outer portion, particularly since the
Lukens outer portion is stated in paragraph 0018 as being fully integrated to
form a ‘single cup structure’” (id.).
2 Appeal Brief filed September 26, 2005.
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