Ex Parte 5779400 et al - Page 41



            Appeal No. 2006-2084                                                                              
            Reexamination Control No. 90/006,360                                                              

            cutting tip.  The tool shank is 8 mm square.  Although the diameter of the inscribed              
            circle is not specifically disclosed, it must be equal to or less than the insert width           
            H = 7 mm (= 0.276").  The thickness of the lip or elongated body portion on the                   
            shank is 8 mm - 7 mm = 1 mm.  The insert is mounted with a countersunk screw as                   
            indicated by the angled dashed lines in the side views of the insert and the                      
            concentric circles in the top views of the insert.  The fastener is an M3x8.0 Torx                
            screw (i.e., 3 mm in diameter by 8 mm long thread), which must have a                             
            countersunk head to fit in the countersunk aperture in the insert.                                

                   Level of ordinary skill in the art                                                         
                   The USPTO has no way to take testimony about the level of ordinary skill in                
            the art.  In any case, defining a person of ordinary skill in the art solely by degrees           
            and experience does not inform us about what the hypothetical person of ordinary                  
            skill in the art knows.  For these reasons, 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.                     

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