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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