Appeal No. 1997-2041
Application No. 08/337,131
In In re Knapp Monarch Co., 296 F.2d 230, 232, 132 USPQ 6,
8 (1961), the court stated that:
Factual matters of which judicial
notice is taken can be challenged
by production of evidence to the
contrary. If therefore,
appellant here wishes to
challenge the truth of the
matters judicially noted by the
examiner and the Trademark Trial
and Appeal Board, he must
challenge it by presenting
evidence to the contrary. The
record does not show any such
evidence. In the absence of such
evidence, the board’s finding,
based on its judicial notice of
the facts... is conclusive of the
issue here.
Like the examiner (Answer, page 6), we note that the
appellant failed to challenge the truth of the matter
judicially noted in the rejection (Answer, page 4).
Accordingly, this feature is considered admitted prior art by
the appellant and accepted as common knowledge in the art of
EPROM devices. See In re Lundberg, 244 F.2d 543, 551, 113
USPQ 530, 537 (CCPA 1957); In re Fox, 471 F.2d 1405, 1406-07,
176 USPQ 340, 341 (CCPA 1973).
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