Appeal No. 2002-2015 Page 13
Application No. 09/232,138
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) ("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).
Appellant further asserts (brief, pages 21-24) that there is
no motivation to combine the teachings of the references.
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