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 Help needed by pro se appeal brief writer – skilled in art 
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Joined: 2014-07-03 23:03:23
Posts: 1
Hi All,

I ran out of money, and did a pro se appeal brief, so I'm a total newbie.

I feel that the examiner uses 'obvious to one skilled in the art' as punctuation placed after every assertion, amazingly agreeing with everything he says.

He gave specific definition of his “skilled in the art” person just in the final rejection. There were some serious issues with his definition:

1) He actually uses incorrect terminology in defining the person skilled in the art, so technically, it is unrelated to the invention
2) Even correcting the terminology in 1), it is an incredibly large and diverse group (actually, all consumers of the product being improved)
3) He only addresses one step in the invention as to what the SIA need to understand, not the whole invention

In my appeal brief, I addressed all of the above, and also attached some web articles/blogs that showed that a higher-skilled group – sellers/supporters of the product – do not find the invention obvious. These were not secret, obscure references. It's more like common knowledge, and easy to find if you are looking for information related to problems this invention solves. I did one search and grabbed three references.

In the examiner's answer, he referred to his definition of one skilled in the art as “a comment” that was “not relevant to the rejection of record”, because one skilled in the art would find the one step that he addresses as SIA info as obvious. It seems like circular illogic to me.

He refused to consider the articles that I attached, calling them new material that he has not had time to consider. To that I would say that he only revealed his definition of one skilled in the art in the final office action, so my response could only be in the appeal brief; and also, the material is along the lines of common knowledge of one actually skilled in the art.

Obviously this is frustrating. I'm writing what I think is a clear breakdown of the situation, and I'm quoting MPEP 2141.03 III: “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).

I'm hoping someone can help with some advice on how to address an ill-defined person skilled in art, and also advice on how I can justify the articles that I included with the appeal brief that the examiner ignored.

Thanks in advance


2014-07-04 00:23:22
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