Appeal No. 95-2165 Page 6
Application
The Rejections under 35 U.S.C. § 102
In the rejections under 35 U.S.C. § 102(b) over Kilian or
Orlowski, and Lee, the examiner uniformly finds that other
components present in each of the above mentioned references
are “presumed to be plasticizers.” See Answer, page 4.
Appellants in each of the above rejections have disputed the
examiners findings. See Brief, pages 13 - 18 and Reply Brief ,
pages 1 - 2. Notwithstanding appellant’s challenge, the
examiner has maintained his presumption that the other
components are plasticizers. It is well settled that where
appellant has challenged a fact officially noticed, the
examiner must provide objective evidence in the pertinent art
in support of his position. The examiner’ failure to provide
such evidence to support the challenged officially noted fact
constitutes clear and reversible error. See In re Ahlert 424
F.2d 1088, 1091, 165 USPQ 418, 420-421 (CCPA 1970); Ex parte
Natale 11 USPQ2d 1222, 1226-1227 (Bd. Pat. App. & Int. 1989).
Accordingly, the rejections over Kilian, Orlowski and Lee are
reversed.
The rejection over Cohen differs from the rejections over
the other prior art references. Cohen discloses a dental
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