the variation is predicated on the level of skill in the art, prior art evidence is needed to
show what the level of skill was.” In re Kaplan, 789 F.2d 1574, 1580, 229 USPQ 678,
683 (Fed. Cir. 1986). Thus, if we were to adopt the examiner’s finding, there would be
no way for a court reviewing our decision to verify whether we were correct. Also, mere
numbers of years of education and/or experience are unhelpful to resolving the
obviousness question because this description says nothing about what was concretely
presum ed to be known as a result of that education or experience. A more appropriate
approach in an ex parte proceeding to determine the level of ordinary skill is to consider
various factors including “type of problems encountered in the art; prior art solutions to
those problems; rapidity with which innovations are made; sophistication of the
technology; and educational level of active workers in the field.” Custom Accessories,
Inc. v. Jeffrey-Allan Indus., Inc., 807 F.2d 955, 962, 1 USPQ2d 1196, 1201 (Fed. Cir.
1986), citedin In re GPAC, Inc., 57 F.3d 1573, 1579, 35 USPQ2d 1116, 1121 (Fed. Cir.
1995). In a given case, every factor may not be present, and one or more factors may
predominate . Id. at 962-63, 1 USPQ2d at 1201.
We fin d that the prior art of record in the present case demonstrates thatone of
ordinary skill in the art at the time of the invention was aware of the problem of being
able to easily and discreetly carry multiple feminine hygiene products throughout the day,
and that one of ordinary skill in the art had similarly solved this problem by creating
composite packages for holding multiple individually-wrapped pads or similar products.
(See e.g., International Patent Application, publication number WO 99/26576 (published
June 3, 1999) and European Patent No. EP 0419770 (published April 3, 1991)). We
further find that one of ordinary skill in the art at the time the invention was made was
familiar with individually wrapping feminine hygiene products to maintain the articles in
consideration.
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