Appeal No. 2001-0250 Page 14
Application No. 08/283,074
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)).
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). With these principles in mind, we
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