Appeal No. 96-1766
Application 08/218,822
The above-quoted representation by the examiner does not
constitute evidence, very much like the notion that mere
counsel’s argument does not take the place of evidence. It is
the initial burden of the examiner to establish a case of
prima facie obviousness based on evidentiary facts, not
speculations or vague recollections. Because the appellant
has attacked the lack of foundation of the examiner’s position
as to what is notoriously well known, it is incumbent upon the
examiner to produce evidentiary proof of his factual
assertions and determinations, such as an affidavit under 37
CFR § 1.107(b), which states:
(b) When a rejection in an application is based
on facts within the personal knowledge of an
employee of the Office, the data shall be as
specific as possible, and the reference must be
supported, when called for by the applicant, by the
affidavit of such employee, and such affidavit shall
be subject to contradiction or explanation by the
affidavits of the applicant and other persons.
The examiner has produced no such affidavit to support the
position relied on. Moreover, even if similar statements were
repeated in an affidavit by the examiner, they would not be
sufficiently specific so as to constitute meaningful evidence.
The examiner has not identified any specific episode of the
show "Little Rascals" or the particular "Las Vegas" stage show
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