Appeal 2007-1340
Application 09/996,125
However, Acharya does not teach that the file selected by the user is a
cached file and does not teach that the selected file that is transmitted to the
user is a cached file. (FF 11.) In addition, Gong does not teach that the user
may decide to retrieve a Web page partly from cache and partly from the
originating network server. (FF 19.)
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").
Apart from the references and their specification, the Appellants have
not addressed the level of ordinary skill in the pertinent art. Therefore like
the Examiner, we consider the level of ordinary skill in the art to be shown
by the references of record, including Acharya, Gong, and Banga, as well as
background material set out in the specification. (See FF 1-20.)
No evidence was submitted regarding secondary considerations of
nonobviousness.
Obviousness
Based upon the Graham factual determinations, we conclude that the
subject matter of claim 1 would have been obvious to a person of ordinary
skill in the art at the time the invention was made because "[t]he gap
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