Appeal No. 95-3959
Application 08/051,492
At page 6 of the first office action (Paper No. 4, mailed August 30, 1993), the
examiner stated:
Applicant is also served judicial notice concerning the well known
practice of feeding (or force-feeding) young or traumatized animals.
There is nothing patentable about a method of administering nutrients via
a dropper or syringe. These are art recognized equivalents.
Appellant timely challenged the examiner’s taking of “judicial notice.” See Paper No. 6,
filed January 3, 1994, page 5 (“The Examiner is requested to provide a reference
supporting the fact that force feeding is equivalent to feeding by syringe . . . ”).
In view of the timely challenge, the examiner should have made of record factual
evidence in support of his assertion of well known facts in the next office action. This
the examiner did not do. Rather, the examiner stated at page 8 of the final office action
(Paper No. 7, mailed March 30, 1994),
If applicant wishes, several reference volumes of Veterinary Medicine will
be cited during appeal . . . . As evidence, the commercial availability of
several nutritional supplements is noted (available at any health food
store), wherein administration is via dropper. Commercially available
forms of these supplements will also be referenced at appeal.
Appellant renewed his request that the examiner provide appropriate evidence at page
9 of the Appeal Brief. One would think that the examiner would surely have supplied
the promised factual support in the Examiner’s Answer. However, the examiner did not
do so. Rather, the examiner relied again upon his taking notice concerning “the well
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