Appeal No. 1997-3586
Application No. 08/240,811
at page 8 of the Answer that the declaration evidence is not
persuasive of unexpected results because the declarant simply
presents "his personal analysis and criticism of the Jackson
reference without presenting any facts that the teachings of
the reference are unobvious to a person of ordinary skill," we
agree with the position espoused in appellants' Brief that the
declaration evidence sufficiently
demonstrates that the expressed opinion of the declarant is
based
upon facts disclosed in the prior art. As for the examiner's 1
criticism that the declarant is an expert rather than one of
ordinary skill in the art, it must be borne in mind that the
examiner should not erroneously substitute his or her judgment
for that of an established expert in the art. In re Zeidler,
682 F.2d 961, 967, 215 USPQ 490, 494 (CCPA 1982).
1Regarding the quoted portion of the Examiner's Answer,
the examiner seems confused in referring to "presenting any
facts that the teachings of the reference are unobvious to a
person of ordinary skill" (emphasis added). Manifestly, the
issue is the obviousness of the claimed invention, not the
reference teachings.
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