Appeal No. 2002-1882
Application 09/756,383
The appellants argue that, because the examiner has not
addressed on the record the level of skill in the art, the
appellants have not been properly apprised of the reasons for
rejection (brief, page 5). “While it is always preferable for
the factfinder below to specify the level of skill it has found
to apply to the invention at issue, the absence of specific
findings on the level of skill in the art does not give rise to
reversible error ‘where the prior art itself reflects an
appropriate level and a need for testimony is not shown.’”
Okajima v. Bourdeau, 261 F.3d 1350, 1355, 59 USPQ2d 1795, 1797
(Fed. Cir. 2001), reh’g & reh’g en banc denied, 19 Fed. Appx. 881
(2001), cert. denied, 534 U.S. 1128 (2002) (quoting Litton Indus.
Prods., Inc. v. Solid State Sys. Corp., 755 F.2d 158, 163, 225
USPQ 34, 38 (Fed. Cir. 1985). The appellants have not explained,
and it is not apparent, why the applied prior art does not
reflect an appropriate level of skill in the art.
The appellants argue that the technologies of the references
are so different in their purposes and functions that one skilled
in the art of one reference would not necessarily be skilled in
the art of the other (brief, page 5). This argument is not well
taken because both reference are directed toward platinum group
metal compounds as gasoline additives.
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