Appeal No. 96-4194
Application 08/239,732
Turning to claims 12, 14, 15, 17 and 19, "the examiner
maintains her position that rollers are commonly used to
rotate
an object and takes judicial notice that she has known of such
use for decades" (final rejection, page 5). In response to
the taking of judicial notice, appellants requested either a
reference or a declaration executed by the examiner to support
the proposition that such rollers were well known in the art
(Brief, page 9). "Allegations concerning specific ‘knowledge’
of the prior art . . . should also be supported and the
appellant similarly given the opportunity to make a
challenge." In re Ahlert, 424 F.2d 1088, 1091, 165 USPQ 418,
420-21 (CCPA 1970). As indicated in 37 CFR § 1.104(d)(2):
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.
Inasmuch as the examiner has not responded to appellants’
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