Appeal No. 97-0331
Application 08/359,562
being unpatentable over Malm in view of Whipple.
Claims 4-7 and 11-14 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Malm in view of Girden.
Each of the above-noted rejections is based on the
examiner’s view that
the part of the paddle of MALM designated as the brace
- that part extending from opening 5 to the left end in
figure 2 - has upper and lower sides and a generally
flattened end. The generally flattened end is formed
by the flat undersurface of the left end of the paddle.
The paddle of MALM also has the opening 5 for receiving
the hand of the user. Appellant may argue that the
examiner is only speculating that the undersurface of
the paddle shown in figure 1 of MALM just above the
forearm will bear against the forearm if the swimmer’s
hand is pivoted upwardly by the force of the water, but
such an argument ignores the dynamics of the water
being pushed by the paddle and the dynamics of the
pivoting of a swimmer’s hand upwardly due to this
force, or pivoted upwardly for any reason.
Observation of figure 1 of MALM and the position
of both the hand and paddle makes it clear that
pivoting of the swimmer’s hand upwardly will bear the
end of the paddle located above the forearm in figure 1
onto the forearm. [Answer, pages 7 and 8.]
As to the limitation in independent claims 1 and 8 that an
end of the paddle bears “against a forearm of the user near an
elbow thereof,” the answer further states that
“near” is a term of relativity. Some of the
definitions of “near” given in The Random House
Dictionary are: at or to a place a relatively short
distance away from a specified person or thing; being
close by; and being relatively closer. This is why the
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Last modified: November 3, 2007