Appeal No. 2004-1408
Application No. 10/166,590
the entire population against the cost of manufacturing the
device.
The appellant urges that if the first and second holdable
positions were spaced at greater than 2 inches in the support of
Cienfuegos, a person with an intermediate height “unavoidably
would be precluded from supporting the seat at his desired
ergonomic elevation...” (Request at 3.) We are not persuaded,
because the appellant has failed to identify any objective
evidence in the record establishing that a person of such
intermediate height would be inconvenienced to any significant
degree, much less unable to use the exercycle or bicycle.
The appellant alleges that the recited distance between the
first and second holdable positions “is outside a known, or even
reasonably suggested, range.” (Request at 3.) Again, however,
the appellant has utterly failed to establish that the recited
distance would result in a support that is unusable for any of
the purposes disclosed or suggested in Cienfuegos.
The appellant contends that “more precise adjustment
obtained from a smaller spacing was admitted by the Examiner at
page 2 of paper No. 5, which constitutes evidence in the record
to substantiate criticality for a size of a spacing between
holdable positions.” (Request at 4.) This position lacks
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