Ex parte DONALD W. KELLEY - Page 5




          Appeal No. 94-1550                                                          
          Application 07/893,662                                                      


               It is not uncommon that the rationale supporting an                    
          obviousness rejection is based on either common knowledge in the            
          art or “well-known” prior art.  As set forth in the M.P.E.P                 
           2144.03, page 2100-115, revision 2, July 1996, an examiner may            
          take official notice of facts outside the record so long as such            
          facts are capable of instant and unquestionable demonstration as            
          being “well-known” in the art.  Typically, such official notice             
          of facts is used to supplement or clarify the teaching of a                 
          reference disclosure or to justify a particular inference to be             
          drawn from a reference teaching.  Thus facts “so noticed” serve             
          to “fill in the gaps” which might exist in the evidentiary                  
          showing made by the examiner to support a particular ground for             
          rejection.  However, it is improper to take official notice of              
          facts which comprise the principal evidence upon which a                    
          rejection is based.  In re Ahlert, 424 F.2d 1088, 1092, 165 USPQ            
          418, 421 (CCPA 1970) (“[w]e know of no case in which facts                  
          judicially noticed comprised the principal evidence upon which a            
          rejection was based or were of such importance as to constitute a           
          new ground of rejection when combined with the other evidence               
          previously used.”).  Here, the examiner’s statement of what was             
          allegedly “well known” in the prior art is so broad and all                 
          inclusive that it is tantamount to a statement that what is                 

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