Appeal No. 97-0737
Application 08/538,554
resist blows and rubbing” (answer, page 4).
Given the disparate natures of the various hip protectors
respectively disclosed by Flick, Wortberg and Valtakari, however,
the appellant’s position that the foregoing combination of these
references constitutes an impermissible hindsight reconstruction
of the claimed invention is well taken. More particularly,
modifying the pads of Flick in the manner advanced by the
examiner apparently would render them incapable of crumpling as
intended by Flick to prevent injury during a player’s slide.
There is nothing in the combined teachings of the references
which would have suggested this result as being desirable. In
this light, it is evident that the examiner has used the claimed
invention as an instruction manual to selectively piece together
isolated disclosures in the prior art to support a conclusion of
obviousness. Furthermore, Rice’s disclosure of a knee
hyperextension orthotic device having hook and loop straps to
secure it to a wearer’s leg does not cure this fundamental flaw
in the basic Flick, Wortberg and Valtakari combination.
Accordingly, we shall not sustain the standing 35 U.S.C.
§ 103 rejection of independent claim 1, and of dependent claims
10 and 11, as being unpatentable over Flick in view of Wortberg
and Valtakari or the standing 35 U.S.C. § 103 rejection of
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