Appeal No. 1997-4047 Page 6
Application No. 08/309,508
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 note the following principles from In re
Rijckaert, 9 F.3d 1531, 1532, 28 USPQ2d 1955, 1956 (Fed. Cir.
1993).
In rejecting claims under 35 U.S.C. Section 103,
the examiner bears the initial burden of presenting
a prima facie case of obviousness. In re Oetiker,
977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir.
1992). Only if that burden is met, does the burden
of coming forward with evidence or argument shift
to the applicant. Id. "A prima facie case of
obviousness is established when the teachings from
the prior art itself would appear to have suggested
the claimed subject matter to a person of ordinary
skill in the art." In re Bell, 991 F.2d 781, 782,
26 USPQ2d 1529, 1531 (Fed. Cir. 1993) (quoting In re
Rinehart, 531 F.2d 1048, 1051, 189 USPQ 143, 147
(CCPA 1976)). If the examiner fails to establish a
prima facie case, the rejection is improper and will
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