Appeal No. 96-2376
Application No. 08/195,341
test is clear since, when dealing with two patent references,
one reference will almost always have a patent date subsequent
to the other.
The test for obviousness under 35 U.S.C. 103 does not
depend on what the actual inventors of the devices which are
the subject of the applied references knew or did not know.
Rather, the test is what the hypothetical artisan skilled in
the art and having the applied references before him/her would
have known. Further, the critical date of interest is not the
filing date or the patented date of the references, vis à vis
each other, but, rather, the effective filing date of the
application under examination. If the filing dates or the
patented dates of the applied references make those references
viable references, within 35 U.S.C. 102, based on the
effective filing date of the application under examination,
then the time interval between the filing date of one of the
references and the patented date of another reference has
little relevance, if any, to a determination of obviousness,
within the meaning of 35 U.S.C. 103, of subject matter claimed
in the pending application.
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