Ex parte CASAL et al. - Page 6




          Appeal No. 1998-1365                                       Page 6           
          Application No. 08/663,969                                                  


          patentable from each other.  They also fail to explain why                  
          claims 32, 33, 41, and 42 are believed to be separately                     
          patentable from each other.  Therefore, the claims stand or                 
          fall together in the following groups:                                      
               •    claims 27, 28, 31, 35-37, 40, and 44.                             
               •    claims 32, 33, 41, and 42.                                        
          We select claims 36 and 42 to represent the respective groups.              
          Next, we address the obviousness of the claims.                             


                              Obviousness of the Claims                               
               We begin 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 on the cold words of the literature.").  Of                    
          course, “‘[e]very patent application and reference relies to                
          some extent upon knowledge of persons skilled in the art to                 








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