Appeal No. 2002-1041
Application 08/866,402
Level of ordinary skill in the art
The level of ordinary skill in the art is evidenced by the
references. See In re Oelrich, 579 F.2d 86, 91, 198 USPQ 210,
214 (CCPA 1978) ("the PTO usually must evaluate both the scope
and content of the prior art and the level of ordinary skill
solely on the cold words of the literature"); In re GPAC Inc.,
57 F.3d 1573, 1579, 35 USPQ2d 1116, 1121 (Fed. Cir. 1995) (the
Board did not err in adopting the approach that the level of
skill in the art was best determined by the references of
record); Okajima v. Bourdeau, 261 F.3d 1350, 1355,
59 USPQ2d 1795, 1797 (Fed. Cir. 2001) ("[T]he 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.'"). One
of ordinary skill in the art must be presumed to know something
about the art apart from what the references expressly disclose.
See In re Jacoby, 309 F.2d 513, 516, 135 USPQ 317, 319 (CCPA
1962). See also In re Sovish, 769 F.2d 738, 743, 226 USPQ 771,
774 (Fed. Cir. 1985) (skill in the art must be presumed).
Differences and motivation
The differences and the motivation will be discussed in
connection with each claim.
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