Appeal 2007-2637
Application 10/741,269
level of skill in the art.20 We focus on what such a person knew and could
do at the time of filing.21
We have already discussed what the specification says those in the art
knew about folding paper inserts. The specification indicates that
appropriate mechanisms and techniques for making the claimed folds are
"well known in the art."22 The only other direct evidence of skill in the
specification is its closing assurance that those of skill would readily
apprehend variations on the embodiments disclosed.23
Olson demonstrates the wide range of creativity those skilled in the
paper fabrication art bring to folding paper. Olson's folds are parallel,
orthogonal, and diagonal; simple and compound; solid and perforated; and
fixed with plain, scented, and flavored adhesives. Olson expects far more
from practitioners in the art than the claimed invention demands.
Viens presupposes considerable electro-mechanical skill in this art.
For instance, Viens expects designers to pick appropriate sensors,24 and to
understand the importance of maintaining stack balance and to adjust the
system to maintain stack neatness.25 Viens closes with the observation that
20 Ex parte Jud, 2006 WL 4080053 at *2 (BPAI) (rehearing with expanded
panel). We have not been directed to any testimony in this appeal.
21 DyStar Textilfarben GmbH v. C.H. Patrick Co., 464 F.3d 1356, 1362-63,
80 USPQ2d 1641, 1646-47 (Fed. Cir. 2006); Custom Accessories, Inc. v.
Jeffrey-Allan Indus., Inc., 807 F.2d 955, 962, 1 USPQ2d 1196, 1201 (Fed.
Cir.1986).
22 Spec. 5:10-11.
23 Spec. 6:1-5.
24 Viens 6:18-23.
25 Viens 10:51-60.
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