Appeal No. 98-1044
Application 08/126,336
therebetween" (column 1, lines 28 through 30). Silberman also
teaches that the elastic means can be replaced by non-
resilient, non-elastic bands for isometric exercises (see
column 4, line 73, through column 5, line 2). This broad
reference to isometric exercise in conjunction with a device
which differs substantially from that disclosed by Ruden does
not provide any reasonable basis for the examiner's conclusion
that it would have been obvious to one having ordinary skill
in the art at the time the invention was made "to make the
[Ruden] block nondeformable in order to provide isometric
resistance" (main answer, page 7). Here again, the examiner's
conclusion of obviousness rests on an impermissible hindsight
reconstruction of the claimed invention. Hoff's disclosure of
a sculptured leg pillow and Noble's disclosure of a handgrip
timer do not overcome the deficiencies in the examiner's
evidence.
In summary and for the above reasons, the decision of the
examiner to reject 1 through 5 and 9 through 13 is affirmed
with respect to claim 11 and reversed with respect to claims 1
through 5, 9, 10, 12 and 13.
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