Appeal No. 2006-2513
Application No. 10/060,782
The USPTO may take notice of facts beyond the record which, while not
generally notorious, are capable of instant and unquestionable demonstration as to defy
dispute. In re Ahlert, 424 F.2d 1088, 1091, 165 USPQ 418, 420 (CCPA 1970). In the
instant case, appellant has not traversed the examiner=s official notice. A Atraverse@ is
not a demand for evidence. A Atraverse@ is a denial of an opposing party=s allegations of
fact. See Black=s Law Dictionary Fifth Edition (AIn common law pleading, a traverse
signifies a denial.@). Moreover, an adequate traverse must contain adequate
information or argument to create on its face a reasonable doubt regarding the
circumstances justifying the official notice. In re Boon, 439 F.2d 724, 728, 169 USPQ
231, 234 (CCPA 1971).
Appellant does not deny that any symbol or combination of symbols can be (or
could have been) programmed as delimiters. Appellant instead alleges that the scope
of the prior art does not include use of the A+@ symbol and/or the A&@ symbol to add
destinations selected from a list of destinations including a group name representing
mail addresses of multiple members. (Brief at 10-11.) Appellant=s allegation seems to
be based on the view that machines in the prior art have not been programmed to
process a A+@ or a A&@ in place of a A,@, as described by Meister. However, the position
does not speak to what the examiner alleges to be fact -- which we know to be fact --
and which, in any event, appellant has not denied.
We thus find that the evidence shows that the choice of programming of the
character or characters to initiate the claimed functions represents an arbitrary design
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