Appeal 2007-1275
Application 09/824,248
anticipated success, it is likely the product not of innovation but of ordinary
skill and common sense," id. and, in such an instance "the fact that a
combination was obvious to try might show that it was obvious under § 103"
id.
The level of ordinary skill in the art may be evidenced by the prior art
references. In re GPAC Inc., 57 F.3d 1573, 1579, 35 USPQ2d 1116, 1121
(Fed. Cir. 1995) ("Although the Board did not make a specific finding on
skill level, it did conclude that the level of ordinary skill in the art . . . was
best determined by appeal to the references of record . . . . We do not
believe that the Board clearly erred in adopting this approach."); see also 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 sustaining a multiple reference rejection under 35 U.S.C. § 103(a),
the Board may rely on one reference alone without designating it as a new
ground of rejection. In re Bush, 296 F.2d 491, 496, 131 USPQ 263, 266-67
(CCPA 1961); In re Boyer, 363 F.2d 455, 458 n.2, 150 USPQ 441, 444 n.2
(CCPA 1966).
During examination of patent application, a claim is given its broadest
reasonable construction consistent with the specification. In re Prater, 415
F.2d 1393, 1404-05, 162 USPQ 541, 550-51 (CCPA 1969). "[T]he words of
a claim 'are generally given their ordinary and customary meaning.'"
Phillips v. AWH Corp., 415 F.3d 1303, 1312, 75 USPQ2d 1321, 1326 (Fed.
Cir. 2005) (en banc) (internal citations omitted). The "ordinary and
customary meaning of a claim term is the meaning that the term would have
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