Appeal No. 97-3982
Application 08/336,323
We have carefully reviewed the rejections on appeal in
light of the arguments of the appellant and the examiner. As
a result of this review, we have determined that the applied
prior art does not establish a case of prima facie case of
obviousness with respect to the claims on appeal. Therefore,
the rejections of these claims are not sustained. Our reasons
follow.
It is our view that the combination of references cited
by the examiner represents an exercise of impermissible
hindsight
on the part of the examiner in this consideration of claim 1
on appeal. We agree with the examiner that Taylor discloses a
flexible housing, but we disagree that the vibrator plate is
generally flat, inasmuch as Taylor depends upon finger ends 24
to simulate a fingertip massage. In our view, Mack adds
little to the reference Taylor in that it actually teaches
away from the claimed combination. Mack discloses a vibrator
in a housing which is secured to the heating member by VELCRO
strips so that it can be removed and placed exactly on the
heating member where the massage is most necessary. In our
view, the teaching of Mack when applied to the Taylor
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Last modified: November 3, 2007