Appeal No. 95-1866
Application 07/878,500
cockpit instrument format. Appellant also argued that "while4
motor vehicles are subject to maintenance, they are not subject
to rigorous maintenance procedures in airline aircraft and the
idea of using a recorder corresponding to a flight recorder on a
motor vehicle for purposes of maintenance is clearly outside of
any routine consideration by [a] person with ordinary skill in
the art." In response to this argument, the examiner explained
(for the first time) that "the use of recording means is well
established in the art, for example, [in] monitoring of stops and
engine operation in fleet trucking operations to ensure proper
5 6
delivery and equipment operation." Appellant complains, and we
agree, that the examiner should have cited a reference in support
of this factual allegation. Compare In re Ahlert, 424 F.2d 1088,
1091, 165 USPQ 418, 420 (CCPA 1970) (an examiner may "take notice
of facts beyond the record which, while not generally notorious,
are capable of such instant and unquestionable demonstration as
to defy dispute"). Furthermore, we agree with appellant that one
skilled in the art would not have been motivated by Benn and Ando
to add a sensor data recording and playback device to Ando's land
4Brief at 9.
5Answer at 7.
6Reply Brief at 4-5.
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