Appeal No. 1998-1435 Page 9
Application No. 08/132,584
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 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 complement that
[which is] disclosed ....’” In re Bode, 550 F.2d 656, 660,
193 USPQ 12, 16 (CCPA 1977) (quoting In re Wiggins, 488 F.2d
538, 543, 179 USPQ 421, 424 (CCPA 1973)). Those persons “must
be presumed to know something” about the art “apart from what
the references disclose.” In re Jacoby, 309 F.2d 513, 516,
135 USPQ 317, 319 (CCPA 1962).
We next note that when the appeal brief was filed, 37
C.F.R. § 1.192(c)(7)(1996) included the following provisions.
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