Appeal No. 1998-2825
Application No. 08/595,282
re Jacoby, 309 F.2d 513, 516, 135 USPQ 317, 319 (CCPA 1962))
and the conclusion of obviousness may be made from "common
knowledge and common sense" of the person of ordinary skill in
the art (see In re Bozek, 416 F.2d 1385, 1390, 163 USPQ 545,
549 (CCPA 1969)). Moreover, skill is presumed on the part of
those practicing in the art, not the converse. See In re
Sovish, 769 F.2d 738, 743, 226 USPQ 771, 774 (Fed. Cir. 1985).
Appellant acknowledges that formulas were known in the
art prior to his invention for calculating a heart rate range
for an individual of average physical fitness based solely on
the individual’s age (see, for example, the substitute brief,
page 3, lines 1-9). Crossing uses such a conventional formula
to obtain a heart rate range, but varies the range to suit the
perceived fitness of the individual user. In other words,
Crossing provides a refining feature which allows the user to
tailor the exercise session to his or her particular physical
condition, rather than to the specific fitness level upon
which the conventional formula is based. Thus, even in the
absence of any specific teaching by Crossing that a heart rate
range may be obtained with the disclosed apparatus and method
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