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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