Appeal No. 1997-0218
Application No. 08/182,757
obvious to one having ordinary skill in the art. However, the
record is devoid of an appropriate response by the examiner.
Therefore, the application is remanded for resolution of the
following issues:
(1) On this record, it is unclear whether the examiner's
conclusion of obviousness is based on (1) personal knowledge
or (2) official notice. If the examiner is relying on
personal knowledge, 37 CFR § 1.104(d)(2) is controlling and 2
reads as follows:
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. [Emphasis added.]
On the other hand, if the examiner is taking official
notice that the use of a multilayered plasticized polyvinyl
chloride film having different levels of plasticization is
known in the art, MPEP § 2144.03 (7th ed., Rev. 1, Feb. 2000)
is instructive and provides:
2Effective December 1, 1997, the subject matter of 37 CFR
§ 1.107(b) was transferred to 37 CFR § 1.104(d)(2). See 62
Fed. Reg. 53,132 (1997).
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