Appeal No. 1997-1285 Page 7
Application No. 08/307,153
joined. As pointed out by appellant on page 5 of the brief, FR 196 shows such a radially directed shelf
portion. FR 196 denotes the shelf portion as inner rim 3 in the figures. When forming the closure of FR
196 by insert injection molding, as suggested by the art combination, the injection mold cavity would
necessarily have a cavity for forming the inner rim 3 of FR 196. We conclude that the examiner has
made out a prima facie case of obviousness with respect to the subject matter of claim 29.
Claim 30 is dependent on claim 26 and further requires that the mold cavity include a portion
for forming an upstanding rib member on the upper surface of the frame member. In the rejection, the
examiner states that the upstanding rib member is deemed an obvious improvement for the lid and is
conventional in the art (Answer page 4).
Where the appellant has failed to challenge a fact officially noticed or stated to be well- known
or conventional in the art and it is clear that the appellant has had an opportunity to make a challenge,
the fact asserted will be taken as admitted. Cf. In re Ahlert, 424 F.2d 1088, 1091, 165 USPQ 418,
421 (CCPA 1970); In re Chevenard, 139 F.2d 711, 712-13, 60 USPQ 239, 241 (CCPA 1944).
The examiner first made the statement of conventionality in the final rejection. Appellant had an
opportunity to challenge the statement both in the after-final response and also in the brief. Yet
appellant presented no such challenge. Because appellant has not challenged the statement that
upstanding ribs are conventional in the art, the subject matter stated to be conventional is taken to be
admitted prior art.
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