Interference No. 103,878
skill in the art under 35 U.S.C. § 103. “That is the ultimate
legal question which the court must decide. So far as the
affidavits undertake to tell the court the answer to that
question, they are but incompetent expressions of opinion.
See In re Chilowsky, 306 F.2d 908, 50 CCPA 806.” In re Weber,
341 F.2d 143, 145, 144 USPQ 495, 497 (CCPA 1965). Other
assertions in the affidavits are at best no more than evidence
to be evaluated along with the other evidence of record,
including the prior art. Id.
Objective Evidence of Non-Obviousness
Included in the senior party’s brief are arguments
directed to the so-called secondary considerations, also
referred to as objective evidence of non-obviousness. When
such evidence is presented, it is our duty to consider all
evidence anew. See, for example, In re Eli Lilly & Co., 902
F.2d 943, 945, 14 USPQ2d 1741, 1743 (Fed. Cir. 1990). We
are also mindful that objective evidence of nonobviousness in
any given case may be entitled to more or less weight
depending on its nature and its
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