Appeal 2007-4313
Application 10/286,172
The ordinary level of skill
We look to the evidence of record—the applicant's disclosure, the
cited references, and any declaration testimony—in resolving the ordinary
level of skill in the art. We focus on what those of skill in the art know and
can do.
The specification and cited references reveal a highly developed and
sophisticated art. The admitted prior art shows that those in the small-piece
electroplating art were familiar with the basic apparatus and method of
electroplating. Small pieces are held in a hopper and agitated so they have
many opportunities for coming into contact with the cathode at the bottom of
the hopper.
Oesterle pointedly limits its tutorial on considerations in the
electroplating art because the control considerations are already so well
understood. (Oesterle 5:5-29.) Those in the art would appreciate from
Oesterle, however, that the size of the cathode within the tank can be space-
efficiently maximized by making the surface irregular. (We suspect those in
the art already appreciated that increased surface area usually relates to
increased reaction rate in a chemical system.)
Lowenheim shows that the basic theory behind electroplating dates
back nearly two centuries. Lowenheim provides numerous examples and
explains misunderstandings underlying apparent exceptions to the theory.
We have no testimony per se in the record. We recognize that Murata
argues those skilled in the art would not appreciate the relevance of Oesterle
and Lowenheim to the specific problems of small-piece plating. (Br. 12-13.)
Attorney argument is no substitute for evidence, however, and is entitled to
no evidentiary weight. The examiner has not presented Oesterle and
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