Appeal No. 1999-0081
Application No. 08/506,645
In addition, 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, I agree with the majority that “[t]he
focus of the arguments between appellant and the examiner with
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