“I’ve asked that in the past but it’s been ignored. The SPE stands firm that the Examiner is allowed to implicitly determine the level of ordinary skill and not required to explicitly determine ordinary skill level. When I bring up that implicit determination still requires the Examiner to demonstrate that a reference reflects an appropriate level of skill, they have no answer, and the “answers” they typically throw at me are along the lines of “the references reflect the appropriate level of skill because the Examiner can come up with a reason to combine the references.””
Right, they don’t even understand what you’re asking for. Once they do, it is of course child’s play.
“The USPTO has had over 50 years to come up with a test for an Examiner to explicitly determine the level of skill. ”
Meh, like 99% of the cases it isn’t all that relevant to. Unless you want to launch a crusade against obviousness rejections and have nigh all combinations deemed non-obvious. Which nobody in power wants you to be successful at, so it isn’t going to happen.
” Naturally, if the USPTO came up with an analysis for determining skill level, it would be something else that applicants could appeal.”
Right, and “who needs that headache” when in truth it isn’t all that relevant, UNLESS, you want what I mentioned above. Which again, isn’t happening.
“Personally, it seems to me that the more the USPTO refuses to address the issue, the more leverage it gives applicants when appealing before the PTAB as the issue comes down to reversing the rejections or having to be able to justify to the Federal Circuit why the USPTO does not train Examiners on how to determine skill level, etc.”
Gl, I’m sure NOBODY ever tried anything like that before.
“If you’re someone who files appeals on a regular basis, it’s a good issue to tee up. ”
Great, gl w/ that.
“and that the failure to determine skill level (or improperly implicitly determined skill level) affected the conclusion of obviousness. ”
Right, and that last part knocks it out of around 99% of cases, as I mentioned with the caveat I mentioned above.