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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