Appeal No. 95-3811
Application No. 08/249,081
level of experimentation must not be “undue.” In re Wright, 99
Fd 2 1557, 1561, 27 USPQ 2d 1510, 1513 (Fed. Cir. 1993): In re
Back, 949 Fd2 488, 495, 20 USPQ 2D 1438, 1444 (Fed. circuit
1991). Obviously, this must be determined on a case-by-case
basis. Appellant has provided an inital and supplemental
declaration from someone other than himself recognizing the
noted errors in the specification as filed and deficiences
therein and offering opinion and factual evidence and commen
sense in the art from an artisan’s in perspective how the
artisan would have reacted or does react to these noted
deficiences Over all, to the extent we find a direct
relationship of the noted deficiences in the specification by
the examiner to the presently claimed subject matter, the
weight of the evidence clearly indicates that the overall
specification and drawings would not have led the artisan to
conduct undue experimentation but only a reasonable degree of
routine experimentation in order to make and use the presently
claimed subject matter. Therefore, the decision of the
examiner rejecting claims 3-6 and 13 under the first paragraph
35 U.S.C. 112 is reversed.
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