Interference No. 102,668
McMahon also complains that the lateness of Cavanagh's
request to take official notice deprived him of an opportunity
to submit contradictory or rebuttal evidence, citing paragraph
(e) of the rule, which reads:
(e) Opportunity to be heard. A party is
entitled upon timely request to an opportunity to be
heard as to the propriety of taking judicial notice
and the tenor of the matter noticed. In the absence
of prior notification, the request may be made after
judicial notice has been taken.
This paragraph does not support McMahon's contention that he
should be allowed to submit contrary evidence; it simply
requires that a party who so requests be given an opportunity
to be heard on the propriety of taking judicial notice. See
the Advisory Committee Note to paragraph (e), which states
that "[w]ithin its narrow area of adjudicative facts, the rule
contemplates there is to be no evidence before the jury in
disproof." McMahon's opportunity to be heard on this issue,
of which he took advantage, was his reply to Cavanagh's
opposition to his motion to suppress.
McMahon's second ground for attacking Cavanagh's
evidence of an actual reduction to practice is that the count,
which recites staves having a "predetermined shape,"
implicitly requires curved staves in order to be operable and
- 21 -
Page: Previous 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Next
Last modified: November 3, 2007