Interference No. 105,174 Paper 86
Henkel v. P&G Page 13
significance of the hypothetical ordinarily skilled artisan in detail). This hypothetical
person of ordinary skill in the art is presumed to know all applicable prior art. In re
Carlson, 983 F.2d 1032, 1038, 25 USPQ2d 1207, 1211 (Fed. Cir. 1992); In re Nilssen,
851 F.2d 1401, 1403, 7 USPQ2d 1500, 1502 (Fed. Cir. 1988).
To meet the burden of proof, consideration of both the prior art and the level of
ordinary skill in the art cannot be avoided. Therefore, a party asserting no interference-
in-fact must show (a) the existence of differences between its claims and the claims of
its opponent and (b) that, in light of the scope and content of the prior art and the level
of ordinary skill in the art, there is no prior art when combined with the opponent’s
claims that would render the movant’s claimed subject matter as a whole obvious. It is
the movant’s burden to establish both the level of ordinary skill in the art and the scope
and content of the prior art necessary to make the non-obviousness determination.
While P&G has pointed out differences between its claims and Henkel’s claims,
P&G has not established either the level of ordinary skill in the art or the scope and
content of the prior art. Thus, P&G has not established that the subject matter of its
claims would have been non-obvious over Henkel’s claims to a person of ordinary skill
in the art.
Specifically, P&G has not established that measuring dissolution rates on a
weight by weight basis using a SOTAX dissolution test method is not part of the
relevant prior art known to the hypothetical person having ordinary skill in the art. In
other words, P&G has not established that the subject matter of P&G’s claims,
particularly measuring dissolution rates on a weight by weight basis using a SOTAX
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