MPEP § 2141.03 — Level of Ordinary Skill in the Art (Annotated Rules)
§2141.03 Level of Ordinary Skill in the Art
This page consolidates and annotates all enforceable requirements under MPEP § 2141.03, including statutory authority, regulatory rules, examiner guidance, and practice notes. It is provided as guidance, with links to the ground truth sources. This is information only, it is not legal advice.
Level of Ordinary Skill in the Art
This section addresses Level of Ordinary Skill in the Art. Primary authority: 35 U.S.C. 102 and 35 U.S.C. 112. Contains: 1 requirement, 4 permissions, and 12 other statements.
Key Rules
Obviousness
References which are not prior art may be relied upon to demonstrate the level of ordinary skill in the art at or around the relevant time. See In re Merck & Co., Inc., 800 F.2d 1091, 1098, 231 USPQ 375, 380 (Fed. Cir. 1986) (“Evidence of contemporaneous invention is probative of ‘the level of knowledge in the art at the time the invention was made.’” (citing In re Farrenkopf, 713 F.2d 714, 720, 219 USPQ 1, 6 (Fed. Cir. 1983))); Ecolochem, Inc. v. S. California Edison Co., 227 F.3d 1361, 1379, 56 USPQ2d 1065, 1079 (Fed. Cir. 2000) (“The fact of near-simultaneous invention, though not determinative of statutory obviousness, is strong evidence of what constitutes the level of ordinary skill in the art.” (quoting The Int’l Glass Co. v. United States, 408 F.2d 395, 405, 159 USPQ 434, 442 (Ct. Cl. 1969))). See also Thomas & Betts Corp. v. Litton Sys., Inc., 720 F.2d 1572, 1580-81, 220 USPQ 1, 7 (Fed. Cir. 1983) (“Thus, the [unpublished internal materials], though not technically prior art, were, in effect, properly used as indicators of the level of ordinary skill in the art to which the invention pertained.”).
References which are not prior art may be relied upon to demonstrate the level of ordinary skill in the art at or around the relevant time. See In re Merck & Co., Inc., 800 F.2d 1091, 1098, 231 USPQ 375, 380 (Fed. Cir. 1986) (“Evidence of contemporaneous invention is probative of ‘the level of knowledge in the art at the time the invention was made.’” (citing In re Farrenkopf, 713 F.2d 714, 720, 219 USPQ 1, 6 (Fed. Cir. 1983))); Ecolochem, Inc. v. S. California Edison Co., 227 F.3d 1361, 1379, 56 USPQ2d 1065, 1079 (Fed. Cir. 2000) (“The fact of near-simultaneous invention, though not determinative of statutory obviousness, is strong evidence of what constitutes the level of ordinary skill in the art.” (quoting The Int’l Glass Co. v. United States, 408 F.2d 395, 405, 159 USPQ 434, 442 (Ct. Cl. 1969))). See also Thomas & Betts Corp. v. Litton Sys., Inc., 720 F.2d 1572, 1580-81, 220 USPQ 1, 7 (Fed. Cir. 1983) (“Thus, the [unpublished internal materials], though not technically prior art, were, in effect, properly used as indicators of the level of ordinary skill in the art to which the invention pertained.”).
References which are not prior art may be relied upon to demonstrate the level of ordinary skill in the art at or around the relevant time. See In re Merck & Co., Inc., 800 F.2d 1091, 1098, 231 USPQ 375, 380 (Fed. Cir. 1986) (“Evidence of contemporaneous invention is probative of ‘the level of knowledge in the art at the time the invention was made.’” (citing In re Farrenkopf, 713 F.2d 714, 720, 219 USPQ 1, 6 (Fed. Cir. 1983))); Ecolochem, Inc. v. S. California Edison Co., 227 F.3d 1361, 1379, 56 USPQ2d 1065, 1079 (Fed. Cir. 2000) (“The fact of near-simultaneous invention, though not determinative of statutory obviousness, is strong evidence of what constitutes the level of ordinary skill in the art.” (quoting The Int’l Glass Co. v. United States, 408 F.2d 395, 405, 159 USPQ 434, 442 (Ct. Cl. 1969))). See also Thomas & Betts Corp. v. Litton Sys., Inc., 720 F.2d 1572, 1580-81, 220 USPQ 1, 7 (Fed. Cir. 1983) (“Thus, the [unpublished internal materials], though not technically prior art, were, in effect, properly used as indicators of the level of ordinary skill in the art to which the invention pertained.”).
References which are not prior art may be relied upon to demonstrate the level of ordinary skill in the art at or around the relevant time. See In re Merck & Co., Inc., 800 F.2d 1091, 1098, 231 USPQ 375, 380 (Fed. Cir. 1986) (“Evidence of contemporaneous invention is probative of ‘the level of knowledge in the art at the time the invention was made.’” (citing In re Farrenkopf, 713 F.2d 714, 720, 219 USPQ 1, 6 (Fed. Cir. 1983))); Ecolochem, Inc. v. S. California Edison Co., 227 F.3d 1361, 1379, 56 USPQ2d 1065, 1079 (Fed. Cir. 2000) (“The fact of near-simultaneous invention, though not determinative of statutory obviousness, is strong evidence of what constitutes the level of ordinary skill in the art.” (quoting The Int’l Glass Co. v. United States, 408 F.2d 395, 405, 159 USPQ 434, 442 (Ct. Cl. 1969))). See also Thomas & Betts Corp. v. Litton Sys., Inc., 720 F.2d 1572, 1580-81, 220 USPQ 1, 7 (Fed. Cir. 1983) (“Thus, the [unpublished internal materials], though not technically prior art, were, in effect, properly used as indicators of the level of ordinary skill in the art to which the invention pertained.”).
“The importance of resolving the level of ordinary skill in the art lies in the necessity of maintaining objectivity in the obviousness inquiry.” Ryko Mfg. Co. v. Nu-Star, Inc., 950 F.2d 714, 718, 21 USPQ2d 1053, 1057 (Fed. Cir. 1991). The examiner must ascertain what would have been obvious as of the relevant time to one of ordinary skill in the art, and not to the inventor, a judge, a layman, those skilled in remote arts, or to geniuses in the art at hand. Environmental Designs, Ltd. v. Union Oil Co., 713 F.2d 693, 218 USPQ 865 (Fed. Cir. 1983), cert. denied, 464 U.S. 1043 (1984).
“The importance of resolving the level of ordinary skill in the art lies in the necessity of maintaining objectivity in the obviousness inquiry.” Ryko Mfg. Co. v. Nu-Star, Inc., 950 F.2d 714, 718, 21 USPQ2d 1053, 1057 (Fed. Cir. 1991). The examiner must ascertain what would have been obvious as of the relevant time to one of ordinary skill in the art, and not to the inventor, a judge, a layman, those skilled in remote arts, or to geniuses in the art at hand. Environmental Designs, Ltd. v. Union Oil Co., 713 F.2d 693, 218 USPQ 865 (Fed. Cir. 1983), cert. denied, 464 U.S. 1043 (1984).
“The importance of resolving the level of ordinary skill in the art lies in the necessity of maintaining objectivity in the obviousness inquiry.” Ryko Mfg. Co. v. Nu-Star, Inc., 950 F.2d 714, 718, 21 USPQ2d 1053, 1057 (Fed. Cir. 1991). The examiner must ascertain what would have been obvious as of the relevant time to one of ordinary skill in the art, and not to the inventor, a judge, a layman, those skilled in remote arts, or to geniuses in the art at hand. Environmental Designs, Ltd. v. Union Oil Co., 713 F.2d 693, 218 USPQ 865 (Fed. Cir. 1983), cert. denied, 464 U.S. 1043 (1984).
“The importance of resolving the level of ordinary skill in the art lies in the necessity of maintaining objectivity in the obviousness inquiry.” Ryko Mfg. Co. v. Nu-Star, Inc., 950 F.2d 714, 718, 21 USPQ2d 1053, 1057 (Fed. Cir. 1991). The examiner must ascertain what would have been obvious as of the relevant time to one of ordinary skill in the art, and not to the inventor, a judge, a layman, those skilled in remote arts, or to geniuses in the art at hand. Environmental Designs, Ltd. v. Union Oil Co., 713 F.2d 693, 218 USPQ 865 (Fed. Cir. 1983), cert. denied, 464 U.S. 1043 (1984).
Patent Application Content
The level of disclosure in the specification of the application under examination or in relevant references may also be informative of the knowledge and skills of a person of ordinary skill in the art. For example, if the specification is entirely silent on how a certain step or function is achieved, that silence may suggest that figuring out how to achieve that step or function is within the ordinary skill in the art, provided that the specification complies with 35 U.S.C. 112. Uber Techs., Inc. v. X One, Inc., 957 F.3d 1334, 1339, 2020 USPQ2d 10476 (Fed. Cir. 2020) (“The specification of the '593 patent is entirely silent on how to transmit user locations and maps from a server to a user's mobile device, suggesting that a person of ordinary skill in the art was more than capable of selecting between the known methods of accomplishing this. The '593 patent confirms that its invention, including any necessary plotting, ‘utilizes existing platforms and infrastructure’ and does not ‘require development of new cell phone or PDA technology, nor do[es it] require development of new cellular communication infrastructure.’")
The level of disclosure in the specification of the application under examination or in relevant references may also be informative of the knowledge and skills of a person of ordinary skill in the art. For example, if the specification is entirely silent on how a certain step or function is achieved, that silence may suggest that figuring out how to achieve that step or function is within the ordinary skill in the art, provided that the specification complies with 35 U.S.C. 112. Uber Techs., Inc. v. X One, Inc., 957 F.3d 1334, 1339, 2020 USPQ2d 10476 (Fed. Cir. 2020) (“The specification of the '593 patent is entirely silent on how to transmit user locations and maps from a server to a user's mobile device, suggesting that a person of ordinary skill in the art was more than capable of selecting between the known methods of accomplishing this. The '593 patent confirms that its invention, including any necessary plotting, ‘utilizes existing platforms and infrastructure’ and does not ‘require development of new cell phone or PDA technology, nor do[es it] require development of new cellular communication infrastructure.’")
The level of disclosure in the specification of the application under examination or in relevant references may also be informative of the knowledge and skills of a person of ordinary skill in the art. For example, if the specification is entirely silent on how a certain step or function is achieved, that silence may suggest that figuring out how to achieve that step or function is within the ordinary skill in the art, provided that the specification complies with 35 U.S.C. 112. Uber Techs., Inc. v. X One, Inc., 957 F.3d 1334, 1339, 2020 USPQ2d 10476 (Fed. Cir. 2020) (“The specification of the '593 patent is entirely silent on how to transmit user locations and maps from a server to a user's mobile device, suggesting that a person of ordinary skill in the art was more than capable of selecting between the known methods of accomplishing this. The '593 patent confirms that its invention, including any necessary plotting, ‘utilizes existing platforms and infrastructure’ and does not ‘require development of new cell phone or PDA technology, nor do[es it] require development of new cellular communication infrastructure.’")
The level of disclosure in the specification of the application under examination or in relevant references may also be informative of the knowledge and skills of a person of ordinary skill in the art. For example, if the specification is entirely silent on how a certain step or function is achieved, that silence may suggest that figuring out how to achieve that step or function is within the ordinary skill in the art, provided that the specification complies with 35 U.S.C. 112. Uber Techs., Inc. v. X One, Inc., 957 F.3d 1334, 1339, 2020 USPQ2d 10476 (Fed. Cir. 2020) (“The specification of the '593 patent is entirely silent on how to transmit user locations and maps from a server to a user's mobile device, suggesting that a person of ordinary skill in the art was more than capable of selecting between the known methods of accomplishing this. The '593 patent confirms that its invention, including any necessary plotting, ‘utilizes existing platforms and infrastructure’ and does not ‘require development of new cell phone or PDA technology, nor do[es it] require development of new cellular communication infrastructure.’")
The level of disclosure in the specification of the application under examination or in relevant references may also be informative of the knowledge and skills of a person of ordinary skill in the art. For example, if the specification is entirely silent on how a certain step or function is achieved, that silence may suggest that figuring out how to achieve that step or function is within the ordinary skill in the art, provided that the specification complies with 35 U.S.C. 112. Uber Techs., Inc. v. X One, Inc., 957 F.3d 1334, 1339, 2020 USPQ2d 10476 (Fed. Cir. 2020) (“The specification of the '593 patent is entirely silent on how to transmit user locations and maps from a server to a user's mobile device, suggesting that a person of ordinary skill in the art was more than capable of selecting between the known methods of accomplishing this. The '593 patent confirms that its invention, including any necessary plotting, ‘utilizes existing platforms and infrastructure’ and does not ‘require development of new cell phone or PDA technology, nor do[es it] require development of new cellular communication infrastructure.’")
AIA vs Pre-AIA Practice
[Editor Note: This MPEP section is applicable regardless of whether an application is examined under the AIA or under pre-AIA law. For applications subject to the first inventor to file (FITF) provisions of the AIA, the relevant time is "before the effective filing date of the claimed invention". For applications subject to pre-AIA 35 U.S.C. 102, the relevant time is "at the time of the invention". See MPEP § 2150 et seq. Many of the court decisions discussed in this section involved applications or patents subject to pre-AIA 35 U.S.C. 102. These court decisions may be applicable to applications and patents subject to AIA 35 U.S.C. 102 but the relevant time is before the effective filing date of the claimed invention and not at the time of the invention.]
[Editor Note: This MPEP section is applicable regardless of whether an application is examined under the AIA or under pre-AIA law. For applications subject to the first inventor to file (FITF) provisions of the AIA, the relevant time is "before the effective filing date of the claimed invention". For applications subject to pre-AIA 35 U.S.C. 102, the relevant time is "at the time of the invention". See MPEP § 2150 et seq. Many of the court decisions discussed in this section involved applications or patents subject to pre-AIA 35 U.S.C. 102. These court decisions may be applicable to applications and patents subject to AIA 35 U.S.C. 102 but the relevant time is before the effective filing date of the claimed invention and not at the time of the invention.]
[Editor Note: This MPEP section is applicable regardless of whether an application is examined under the AIA or under pre-AIA law. For applications subject to the first inventor to file (FITF) provisions of the AIA, the relevant time is "before the effective filing date of the claimed invention". For applications subject to pre-AIA 35 U.S.C. 102, the relevant time is "at the time of the invention". See MPEP § 2150 et seq. Many of the court decisions discussed in this section involved applications or patents subject to pre-AIA 35 U.S.C. 102. These court decisions may be applicable to applications and patents subject to AIA 35 U.S.C. 102 but the relevant time is before the effective filing date of the claimed invention and not at the time of the invention.]
Determining Whether Application Is AIA or Pre-AIA
[Editor Note: This MPEP section is applicable regardless of whether an application is examined under the AIA or under pre-AIA law. For applications subject to the first inventor to file (FITF) provisions of the AIA, the relevant time is "before the effective filing date of the claimed invention". For applications subject to pre-AIA 35 U.S.C. 102, the relevant time is "at the time of the invention". See MPEP § 2150 et seq. Many of the court decisions discussed in this section involved applications or patents subject to pre-AIA 35 U.S.C. 102. These court decisions may be applicable to applications and patents subject to AIA 35 U.S.C. 102 but the relevant time is before the effective filing date of the claimed invention and not at the time of the invention.]
[Editor Note: This MPEP section is applicable regardless of whether an application is examined under the AIA or under pre-AIA law. For applications subject to the first inventor to file (FITF) provisions of the AIA, the relevant time is "before the effective filing date of the claimed invention". For applications subject to pre-AIA 35 U.S.C. 102, the relevant time is "at the time of the invention". See MPEP § 2150 et seq. Many of the court decisions discussed in this section involved applications or patents subject to pre-AIA 35 U.S.C. 102. These court decisions may be applicable to applications and patents subject to AIA 35 U.S.C. 102 but the relevant time is before the effective filing date of the claimed invention and not at the time of the invention.]
Implicit or Inherent Motivation
Moreover, references not available as prior art may be relevant to establishing “a motivation to combine which is implicit in the knowledge of one of ordinary skill in the art.” Nat'l Steel Car, Ltd. v. Can. Pac. Ry., Ltd., 357 F.3d 1319, 1337-38, 69 USPQ2d 1641, 1656 (Fed. Cir. 2004) (holding that a drawing made by an engineer that was not prior art can, nonetheless, “… be used to demonstrate a motivation to combine implicit in the knowledge of one of ordinary skill in the art.”).
Moreover, references not available as prior art may be relevant to establishing “a motivation to combine which is implicit in the knowledge of one of ordinary skill in the art.” Nat'l Steel Car, Ltd. v. Can. Pac. Ry., Ltd., 357 F.3d 1319, 1337-38, 69 USPQ2d 1641, 1656 (Fed. Cir. 2004) (holding that a drawing made by an engineer that was not prior art can, nonetheless, “… be used to demonstrate a motivation to combine implicit in the knowledge of one of ordinary skill in the art.”).
Level of Ordinary Skill in the Art
If the only facts of record pertaining to the level of skill in the art are found within the prior art of record, the court has held that an invention may be held to have been obvious without a specific finding of a particular level of skill where the prior art itself reflects an appropriate level. Chore-Time Equipment, Inc. v. Cumberland Corp., 713 F.2d 774, 218 USPQ 673 (Fed. Cir. 1983). See also Okajima v. Bourdeau, 261 F.3d 1350, 1355, 59 USPQ2d 1795, 1797 (Fed. Cir. 2001).
If the only facts of record pertaining to the level of skill in the art are found within the prior art of record, the court has held that an invention may be held to have been obvious without a specific finding of a particular level of skill where the prior art itself reflects an appropriate level. Chore-Time Equipment, Inc. v. Cumberland Corp., 713 F.2d 774, 218 USPQ 673 (Fed. Cir. 1983). See also Okajima v. Bourdeau, 261 F.3d 1350, 1355, 59 USPQ2d 1795, 1797 (Fed. Cir. 2001).
Citations
| Primary topic | Citation |
|---|---|
| AIA vs Pre-AIA Practice Determining Whether Application Is AIA or Pre-AIA | 35 U.S.C. § 102 |
| Patent Application Content | 35 U.S.C. § 112 |
| AIA vs Pre-AIA Practice Determining Whether Application Is AIA or Pre-AIA | MPEP § 2150 |
| Level of Ordinary Skill in the Art | Chore-Time Equipment, Inc. v. Cumberland Corp., 713 F.2d 774, 218 USPQ 673 (Fed. Cir. 1983) |
| – | Environmental Designs, Ltd. V. Union Oil Co., 713 F.2d 693, 696, 218 USPQ 865, 868 (Fed. Cir. 1983) |
| Obviousness | Environmental Designs, Ltd. v. Union Oil Co., 713 F.2d 693, 218 USPQ 865 (Fed. Cir. 1983) |
| Obviousness | In re Farrenkopf, 713 F.2d 714, 720, 219 USPQ 1, 6 (Fed. Cir. 1983) |
| – | In re GPAC, 57 F.3d 1573, 1579, 35 USPQ2d 1116, 1121 (Fed. Cir. 1995) |
| – | KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 421, 82 USPQ2d 1385, 1397 (2007) |
| Level of Ordinary Skill in the Art | See also Okajima v. Bourdeau, 261 F.3d 1350, 1355, 59 USPQ2d 1795, 1797 (Fed. Cir. 2001) |
Source Text from USPTO’s MPEP
This is an exact copy of the MPEP from the USPTO. It is here for your reference to see the section in context.
Official MPEP § 2141.03 — Level of Ordinary Skill in the Art
Source: USPTO2141.03 Level of Ordinary Skill in the Art [R-01.2024]
[Editor Note: This MPEP section is applicable regardless of whether an application is examined under the AIA or under pre-AIA law. For applications subject to the first inventor to file (FITF) provisions of the AIA, the relevant time is “before the effective filing date of the claimed invention”. For applications subject to pre-AIA 35 U.S.C. 102, the relevant time is “at the time of the invention”. See MPEP § 2150 et seq. Many of the court decisions discussed in this section involved applications or patents subject to pre-AIA 35 U.S.C. 102. These court decisions may be applicable to applications and patents subject to AIA 35 U.S.C. 102 but the relevant time is before the effective filing date of the claimed invention and not at the time of the invention.]
I. FACTORS TO CONSIDER IN DETERMINING LEVEL OF ORDINARY SKILLThe person of ordinary skill in the art is a hypothetical person who is presumed to have known the relevant art at the relevant time. Factors that may be considered in determining the level of ordinary skill in the art may include: (A) “type of problems encountered in the art;” (B) “prior art solutions to those problems;” (C) “rapidity with which innovations are made;” (D) “sophistication of the technology; and” (E) “educational level of active workers in the field. In a given case, every factor may not be present, and one or more factors may predominate.” In re GPAC, 57 F.3d 1573, 1579, 35 USPQ2d 1116, 1121 (Fed. Cir. 1995); Custom Accessories, Inc. v. Jeffrey-Allan Indus., Inc., 807 F.2d 955, 962, 1 USPQ2d 1196, 1201 (Fed. Cir. 1986); Environmental Designs, Ltd. V. Union Oil Co., 713 F.2d 693, 696, 218 USPQ 865, 868 (Fed. Cir. 1983).
“A person of ordinary skill in the art is also a person of ordinary creativity, not an automaton.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421, 82 USPQ2d 1385, 1397 (2007). “[I]n many cases a person of ordinary skill will be able to fit the teachings of multiple patents together like pieces of a puzzle.” Id. at 420, 82 USPQ2d 1397. Office personnel may also take into account “the inferences and creative steps that a person of ordinary skill in the art would employ.” Id. at 418, 82 USPQ2d at 1396.
The level of disclosure in the specification of the application under examination or in relevant references may also be informative of the knowledge and skills of a person of ordinary skill in the art. For example, if the specification is entirely silent on how a certain step or function is achieved, that silence may suggest that figuring out how to achieve that step or function is within the ordinary skill in the art, provided that the specification complies with 35 U.S.C. 112. Uber Techs., Inc. v. X One, Inc., 957 F.3d 1334, 1339, 2020 USPQ2d 10476 (Fed. Cir. 2020) (“The specification of the ‘593 patent is entirely silent on how to transmit user locations and maps from a server to a user’s mobile device, suggesting that a person of ordinary skill in the art was more than capable of selecting between the known methods of accomplishing this. The ‘593 patent confirms that its invention, including any necessary plotting, ‘utilizes existing platforms and infrastructure’ and does not ‘require development of new cell phone or PDA technology, nor do[es it] require development of new cellular communication infrastructure.’”)
The “hypothetical ‘person having ordinary skill in the art’ to which the claimed subject matter pertains would, of necessity have the capability of understanding the scientific and engineering principles applicable to the pertinent art.” Ex parte Hiyamizu, 10 USPQ2d 1393, 1394 (Bd. Pat. App. & Inter. 1988) (The Board disagreed with the examiner’s definition of one of ordinary skill in the art (a doctorate level engineer or scientist working at least 40 hours per week in semiconductor research or development), finding that the hypothetical person is not definable by way of credentials, and that the evidence in the application did not support the conclusion that such a person would require a doctorate or equivalent knowledge in science or engineering.).
References which are not prior art may be relied upon to demonstrate the level of ordinary skill in the art at or around the relevant time. See In re Merck & Co., Inc., 800 F.2d 1091, 1098, 231 USPQ 375, 380 (Fed. Cir. 1986) (“Evidence of contemporaneous invention is probative of ‘the level of knowledge in the art at the time the invention was made.’” (citing In re Farrenkopf, 713 F.2d 714, 720, 219 USPQ 1, 6 (Fed. Cir. 1983))); Ecolochem, Inc. v. S. California Edison Co., 227 F.3d 1361, 1379, 56 USPQ2d 1065, 1079 (Fed. Cir. 2000) (“The fact of near-simultaneous invention, though not determinative of statutory obviousness, is strong evidence of what constitutes the level of ordinary skill in the art.” (quoting The Int’l Glass Co. v. United States, 408 F.2d 395, 405, 159 USPQ 434, 442 (Ct. Cl. 1969))). See also Thomas & Betts Corp. v. Litton Sys., Inc., 720 F.2d 1572, 1580-81, 220 USPQ 1, 7 (Fed. Cir. 1983) (“Thus, the [unpublished internal materials], though not technically prior art, were, in effect, properly used as indicators of the level of ordinary skill in the art to which the invention pertained.”).
Moreover, references not available as prior art may be relevant to establishing “a motivation to combine which is implicit in the knowledge of one of ordinary skill in the art.” Nat’l Steel Car, Ltd. v. Can. Pac. Ry., Ltd., 357 F.3d 1319, 1337-38, 69 USPQ2d 1641, 1656 (Fed. Cir. 2004) (holding that a drawing made by an engineer that was not prior art can, nonetheless, “… be used to demonstrate a motivation to combine implicit in the knowledge of one of ordinary skill in the art.”).
II. SPECIFYING A PARTICULAR LEVEL OF SKILL IS NOT NECESSARY WHERE THE PRIOR ART ITSELF REFLECTS AN APPROPRIATE LEVELIf the only facts of record pertaining to the level of skill in the art are found within the prior art of record, the court has held that an invention may be held to have been obvious without a specific finding of a particular level of skill where the prior art itself reflects an appropriate level. Chore-Time Equipment, Inc. v. Cumberland Corp., 713 F.2d 774, 218 USPQ 673 (Fed. Cir. 1983). See also Okajima v. Bourdeau, 261 F.3d 1350, 1355, 59 USPQ2d 1795, 1797 (Fed. Cir. 2001).
III. ASCERTAINING LEVEL OF ORDINARY SKILL IS NECESSARY TO MAINTAIN OBJECTIVITY“The importance of resolving the level of ordinary skill in the art lies in the necessity of maintaining objectivity in the obviousness inquiry.” Ryko Mfg. Co. v. Nu-Star, Inc., 950 F.2d 714, 718, 21 USPQ2d 1053, 1057 (Fed. Cir. 1991). The examiner must ascertain what would have been obvious as of the relevant time to one of ordinary skill in the art, and not to the inventor, a judge, a layman, those skilled in remote arts, or to geniuses in the art at hand. Environmental Designs, Ltd. v. Union Oil Co., 713 F.2d 693, 218 USPQ 865 (Fed. Cir. 1983), cert. denied, 464 U.S. 1043 (1984).