Appeal No. 2002-0984
Application 09/246,179
In his answer, the examiner "takes Notice" that the
determination of spectral absorptions and the calculation of the
degree of the reaction from spectral data "is ordinary and well
within the capabilities of one of ordinary skill in the art." The
examiner also concludes that it would have been obvious to take
measurements at appropriate time intervals to follow the course
of the reaction. The examiner observes in his answer that
although the appellants had failed to respond to the reliance by
the examiner on the "Examiner's Notice" in their response to the
final rejection, appellants have now raised the argument in their
brief but observes that appellants have not provided any basis to
cast doubt on the "circumstances regarding the Examiner's
Notice." The examiner then attempts to explain the basis for the
"Examiner's Notice" by: making unsupported conclusions;
referencing unidentified textbooks which allegedly support the
"Examiner's Notice"; and, invoking Beer's law for the proposition
that calculating changes in concentration from changes in the
level of absorption would have been within the skill of the
routineer in the art.
In the first instance, the examiner's unwillingness to
provide appellants with evidence which, on the record, the
examiner alleged to have in his possession and which evidence
would have supplied the underlying foundation for the examiner's
legal conclusion of obviousness, was improper. The examiner's
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