Appeal No. 1998-2383 Page 5
Application No. 08/116,355
In re Lintner, 458 F.2d 1013, 1016, 173 USPQ 560, 562 (CCPA 1972). Furthermore, the
conclusion that the claimed subject matter is obvious must be supported by evidence, as shown
by some objective teaching in the prior art or by knowledge generally available to one of
ordinary skill in the art that would have led that individual to combine the relevant teachings of
the references to arrive at the claimed invention. See In re Fine, 837 F.2d 1071, 1074, 5
USPQ2d 1596, 1598 (Fed. Cir. 1988). Rejections based on 35 U.S.C. § 103 must rest on a
factual basis. In making such a rejection, the examiner has the initial duty of supplying the
requisite factual basis and may not, because of doubts that the invention is patentable, resort to
speculation, unfounded assumptions or hindsight reconstruction to supply deficiencies in the
factual basis. In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 177 (CCPA 1967), cert.
denied, 389 U.S. 1057 (1968).
As discussed more fully below, we conclude that the examiner has failed to supply the
requisite factual basis for the determination that the methods of independent claims 17, 41, 46,
47, 50 and 51, and the claims depending therefrom, would have been obvious to one of
ordinary skill in the art at the time of the appellant's invention.
Claim 17 requires, inter alia, the steps of:
extending the leg to which the resilient stretchable element is attached to
substantially full length to stretch and elongate the element;
swinging the extended leg and the extended element from a first position
in which the leg extends upwardly in the vertical and is closely adjacent a plane
bisecting the head and hips of the person exercising to a second position
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