Appeal No. 1996-2481 Page 14
Application No. 07/828763
concluding that the level of ordinary skill in the art was
best determined by the references of record); In re Oelrich,
579 F.2d 86, 91, 198 USPQ 210, 214 (CCPA 1978) ("[T]he PTO
usually must evaluate ... the level of ordinary skill solely
on the cold words of the literature."). Of course, every
patent application and reference relies on the knowledge of
persons skilled in the art to complement its disclosure. In
re Bode, 550 F.2d 656, 660, 193 USPQ 12, 16 (CCPA 1977). Such
persons must be presumed to know something about the art apart
from what the references teach.
In re Jacoby, 309 F.2d 513, 516, 135 USPQ 317, 319 (CCPA
1962).
We also recall that in rejecting claims under 35 U.S.C.
§ 103, the patent examiner bears the initial burden of
establishing a prima facie case of obviousness. A prima facie
case is established when the teachings from the prior art
would appear to have suggested the claimed subject matter to a
person of ordinary skill in the art. If the examiner fails
to establish a prima facie case, an obviousness rejection is
improper and will be overturned. In re Rijckaert, 9 F.3d
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