Appeal No. 95-4636
Application 08/027,868
gaps in the reference, in this case, also cannot be justified
on the basis of official notice. As is stated in In re
Ahlert, 424 F.2d 1088, 1091, 165 USPQ 418, 420 (CCPA 1970):
Assertions of technical facts in areas of esoteric
technology must always be supported by citation to
some reference work recognized as standard in the
pertinent art and the appellants given, in the
Patent Office, the opportunity to challenge the
correctness of the assertion or the notoriety or
repute of the cited reference. (Citations omitted.)
Additionally, note that the examiner has not even
identified what exactly is an "FPGA" implementation of
Butler's data terminal; it is uncertain what the examiner has
proposed to substitute with a FPGA. The FPGA according to the
claimed invention must receive a plurality of the following
signals from around the data terminal: control signals,
address signals, data signals, and sensed signals. In our
view, the examiner appears to have speculated with respect to
this feature as well.
We reject the appellants' argument that it would not have
been obvious to one with ordinary skill in the art to use MS
DOS as the operating system for the claimed data terminal.
The examiner is correct that a well known operating system
such as MS DOS would have been recognized by one with ordinary
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