Ex parte DONOVAN et al. - Page 5




          Appeal No. 97-2466                                         Page 5           
          Application No. 08/461,943                                                  


                                       OPINION                                        
               In reaching our decision in this appeal, we considered                 
          the  subject matter on appeal and the rejection and evidence                
          advanced by the examiner.  We also considered the arguments of              
          the appellants and examiner.  After considering the record                  
          before us, it is our view that the evidence and level of skill              
          in the art would have suggested to one of ordinary skill in                 
          the art the invention of claims 1, 8, 9, 11, 12, 17, and 18.                
          We cannot say, however, that the evidence and level of skill                
          in the art would have suggested the invention of claims 2, 4-               
          7, and 13-16.   Accordingly, we affirm-in-part.                             


               We begin our consideration of the obviousness of the                   
          claims by finding that the references represent the level of                
          ordinary skill in the art.  See In re GPAC Inc., 57 F.3d 1573,              
          1579, 35 USPQ2d 1116, 1121 (Fed. Cir. 1995) (finding that the               
          Board of Patent Appeals and Interference did not err in                     
          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                







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