The opinion
RICH, Judge
(concurring).
I concur in the result.
The statutory prerequisite to patent-ability involved here is unobviousness, to one of ordinary skill in the art, at the time the invention was made. 35 U.S.C. § 103 . The statute says nothing about the “relative merits” of the invention. Moreover, I do not know to what the merits are supposed to be “relative.” We have ruled that an invention does not have to be “better” to be patentable. 1 Relative to the prior art, and considering the ordinary skill of the art, what we consider is not “merits” but differences and the unobviousness of the invention as a whole taking those differences into account. The “legal standard” is unobviousness. The level of skill is not a standard, it is, in conjunction with the prior art, the base against which unobviousness is measured.
. In re Ratti, 270 F.2d 810 , 46 CCPA 976 (1959).