Appeal No. 1998-0030 Page 6
Application No. 08/151,960
John Deere Co., 383 U.S. 1, 17-18, 148 USPQ 459, 467 (1966) in
the consideration and determination of obviousness under 35
U.S.C. § 103. The four factual inquires enunciated therein as
a background for determining obviousness are briefly as
follows: (A) Determining of the scope and contents of the
prior art; (B) Ascertaining the differences between the prior
art and the claims in issue; (C) Resolving the level of
ordinary skill in the pertinent art; and (D) Evaluating
evidence of secondary considerations.
The examiner in this case did not follow the factual
inquires enunciated in Deere. Specifically, the examiner did
not determine the scope and content of the prior art and did
not ascertain the differences between the prior art and the
claims at issue.5
5A specific finding of a particular level of skill is not
always necessary where, as here, the prior art itself reflects
an appropriate level. Chore-Time Equip., Inc. v. Cumberland,
919 F.2d 1575, 1578 n.2, 218 USPQ 673, 676 n.2 (Fed. Cir.
1983). Thus, the examiner did resolve the level of ordinary
skill in the pertinent art.
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