Appeal No. 2002-1019
Application 09/433,570
claims 1 and 9 relating to the axis centered between the golfer’s
shoulders (see Tischler’s Figures 3A, 5A and 5B). Hence, the
examiner’s determination that Tischler is anticipatory with
respect to the subject matter recited in claims 1, 9 and 16 is
unsound.
Accordingly, we shall not sustain the standing 35 U.S.C.
§ 102(b) rejection of claims 1, 9 and 16, and dependent claims 2
through 8, 10 through 15, 22 and 23, as being anticipated by
Tischler.
V. The alternative 35 U.S.C. § 103(a) rejection of claims 1
through 16, 22 and 23
Acknowledging that Tischler fails to meet the limitations in
independent claims 1, 9 and 16 relating the anchor to the left
armpit of a right handed golfer or the right armpit of a left
handed golfer, the examiner concludes that it would have been
obvious to a person of ordinary skill in the art “that the
Tischler device can be used under either [the] right or left
armpit and by either a right-handed or a left-handed golfer. In
the Tischler device, the anchor could be adjusted, based on the
golfer’s stance and the golfer’s choice, under either the right
or the left armpit” (final rejection, page 7). In short,
Tischler not only lacks factual support for this conclusion, it
clearly teaches away therefrom.
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