Appeal No. 2002-2288
Application No. 09/198,727
artisan (Appeal Brief, page 9, lines 2-5). While this is only
attorney argument and not evidence, it illustrates the point that
the examiner has provided no evidence or argument relating to the
level of ordinary skill in the art and whether or not the level of
disclosure would cause undue experimentation to be required of
that hypothetical artisan.
Indeed, the examiner is not sure of the art to which the
claimed invention pertains. (Examiner’s Answer, page 7, lines 16-
19). Consequently, when the examiner repeatedly states that the
“specification offers no detail that would enable one of ordinary
skill in the art to make or use the invention as claimed”
(Examiner’s Answer, page 3, lines 12-13, 15-16 and 18-19; page 4,
lines 11-12, 13-14, and 16-17) one cannot be sure where the bar
for one of ordinary skill in the art has been placed.
In the absence of the proper application of the factors
outlined in Wands, supra, we shall reverse this rejection.
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