Appeal No. 97-4004
Application 08/459,417
apparently the examiner’s position that, inasmuch as fluorescent
apparel is old at well known, it would have been obvious to
provide fluorescent exterior surfaces on bowling shoes and a
wristband. We do not agree. Obviousness under § 103 is a legal
conclusion based on factual evidence (In re Fine, 837 F.2d 1071,
1073, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988)) and the mere fact
that, generally speaking, fluorescent apparel is known does not
provide a sufficient factual basis for establishing the
obviousness of the claimed fluorescent bowling shoes and
wristband within the meaning of 35 U.S.C. § 103 (see In re GPAC
Inc, 57 F.3d 1573, 1582, 35 USPQ2d 1116, 1123 (Fed. Cir. 1995)
and In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA
1967), cert. denied, 389 U.S. 1057 (1968)). As stated on page 6
of the appellant’s specification, by employing a fluorescent
wristband and shoes
the bowler and/or trainer can concentrate on observing
the highlighted key positions of the bowler. For
example, with the use of the fluorescent wristband 38
and fluorescent shoes 36, the bowler and/or the trainer
can concentrate on proper movement of the arm in
conjunction with the feet during the approach.
With respect to claims 24, and claims 25 and 26 which depend
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