Appeal No. 1997-1317
Application No. 08/371,995
(at 10) incorrectly describes this rejection as based solely
on § 103.
D. The level of skill in the art
The level of skill in the art is represented by the
references. See In re Oelrich, 579 F.2d 86, 91, 198 USPQ 210,
214 (CCPA 1978) ("the PTO usually must evaluate both the scope
and content of the prior art and the level of ordinary skill
solely on the cold words of the literature"); In re GPAC Inc.,
57 F.3d 1573, 1579, 35 USPQ2d 1116, 1121 (Fed. Cir. 1995)
(Board did not err in adopting the approach that the level of
skill in the art was best determined by the references of
record).
E. The merits of the § 102 rejection
of claims 1-12 based on Strauch
Anticipation under 35 U.S.C. § 102 requires that
each element of the claim in issue be found, either expressly
described or under principles of inherency, in a single prior
art reference. In re King, 801 F.2d 1324, 1326, 231 USPQ 136,
138 (Fed. Cir. 1986). Thus, appellant's burden on appeal with
respect to a rejection for anticipation is to identify at
least one claimed element that the examiner has failed to show
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