Appeal No. 98-2352
Application 08/245,870
n.”
and 2) since the Smidt device
“does not disclose any form of kneeling and in fact is rife with teachings
of seating and fixing the user in such a seated position, any association
of the present invention with Smidt et al is only speculation and hindsight
reconstruction which is improper.”
We find both of these arguments to be unpersuasive. Treating the second
argument first, we note that claim 1 on appeal does not in any way require kneeling
of the user during use of the claimed apparatus for exercising the lower back
muscles. Thus, the fact that Smidt does not teach or suggest kneeling is irrelevant.
As for the first argument, we note that appellants have provided no reasoning as to
why Smidt cannot or does not provide means and functions responsive to those set
forth in the second clause of claim 1 on appeal. Our review of the Smidt device
reveals that a user’s legs would clearly be bent or flexed and fixed in that position so
that the user’s hamstring muscles would be in a relaxed condition, and that the seat
(41) and pads (70, 90, 91) provide means for resisting forward movement of the
user’s hips to direct the user’s gluteus maximus muscles to a relaxed condition. In
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