Appeal No. 2006-1061
Application No. 09/505,713
Appellants, Brief page 35, questions whether the Muggli reference is
part of the § 103 rejection. The Muggli reference has not been included in
the statement of the rejection by the Examiner. The Examiner relied on this
reference as rebuttal evidence to Appellants’ arguments. (Answer, p. 9).
Appellants argue that, because the Examiner has not addressed on
the record the level of skill in the art, the § 103 rejection is fatally defective.
(Brief, p. 36). “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), (quoting Litton Indus. Prods., Inc. v. Solid
State Sys. Corp., 755 F.2d 158, 163, 225 USPQ 34, 38 (Fed. Cir. 1985).
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.
For the above reasons and those expressed by the Examiner, we
determine that the Examiner has established a prima facie case of
obviousness with respect to the subject matter of claims 38-45 and 47-50.
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