Ex parte RICH - Page 7

               Appeal No. 1998-2383                                                                         Page 7                 
               Application No. 08/116,355                                                                                          

                       Quite simply, we have reviewed the combined teachings of all of the prior art                               
               references (i.e., Holappa, Chellis, Tee, Richardson, Goodman, Piccini and the British                               
               reference) applied by the examiner in rejecting these claims and we find no teaching or                             
               suggestion therein of the above-noted steps of independent claims 17, 41, 46, 47, 50 and 51.                        
               With regard to the particular body positions and movement of body parts recited in the claims,                      
               the examiner contends that                                                                                          
                       once a resilient member is attached to a stationary object and then to a body limb                          
                       which is to be manipulated against the resistance of the resilient member, it                               
                       would have been obvious to one of ordinary skill in the art to move that body                               
                       part in any one of the infinite directions in which that body part/limb is capable                          
                       of moving to thereby strengthen the limb in its totality.  The examiner is of the                           
                       opinion that the claimed methods of use are included within the segment of the                              
                       infinite number of direction/movements which are obvious to one of ordinary                                 
                       skill in the art [answer, page 6].                                                                          
                       The examiner, however, has adduced no evidence to support the assertion that the                            
               particular above-mentioned body positions and movements recited in independent claims 17, 41,                       
               46, 47, 50 and 51 would have been known to one of ordinary skill in the exercising art at the                       
               time of the appellant's invention as part of an exercise routine generally, much less as part of an                 
               exercise routine using at least one resilient stretchable element.  Thus, it appears to us that the                 
               examiner's rejections of these claims stem from impermissible speculation, unfounded                                
               assumptions or hindsight reconstruction.                                                                            
                       Further, the examiner's assertion (answer, page 6) that "[i]f the board agrees that the                     
               apparatus which is provided to perform the above claimed method is obvious," then "the                              

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