Appeal No. 1998-1114
Application 08/353,254
discussion without citation of a reference presents an
evidentiary problem because there is no way for anyone to
verify the truth of the statements. "Even if obviousness of
the variation is predicated on the level of skill in the art,
prior art evidence is needed to show what that level of skill
was." In re Kaplan, 789 F.2d 1574, 1580, 229 USPQ 678, 683
(Fed. Cir. 1986). Thus, although we believe the Examiner's
discussion leading to the finding is correct, if we were to
adopt the finding there would be no way for a court reviewing
our decision to verify whether we were correct. Second, mere
numbers of years of education and/or experience are unhelpful
to resolving the obviousness question because it says nothing
about what was concretely presumed to be known as a result of
that education and experience. It is much more useful to find
that one of ordinary skill in the art knew something specific,
such as "one of ordinary skill in the art of memory protection
had a working knowledge of computer and memory architecture."
Third, the simpler approach to show the level of ordinary
skill, consistent with Kaplan, is to find the references to be
representative of the level of ordinary skill in the art. See
In re Oelrich, 579 F.2d 86, 91, 198 USPQ 210, 214 (CCPA 1978)
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