Appeal No. 1998-0889
Application 08/006,585
the state of the art). Official Notice is intended for facts which
are common knowledge or capable of unquestionable demonstration. See
In re Knapp-Monarch Co., 296 F.2d 230, 232, 132 USPQ 6, 8 (CCPA
1961). See also In re Cofer, 354 F.2d 664, 668, 148 USPQ 268, 271-72
(CCPA 1966).
The rejection is not well stated. The language of the
rejection clearly misuses the concept of Official Notice. Although
"equivalents" under 35 U.S.C. § 112, sixth paragraph, is a factual
determination, whether a printer and a plotter are "equivalents,"
even if they were in means-plus-function format (which they are not),
is not proper for taking of Official Notice, especially where, as
here, Appellants challenge the finding and provide arguments (Br11).
The Examiner's statement that "Examiner takes Official Notice that it
would have been obvious to one having ordinary skill in the art at
the time the invention was made to use smudge resistant ink, means
for delivering ink, and means for holding the plastic card on a
plotting mechanism for printing information on a plastic card since
[these elements were known in the art]" (EA4) erroneously uses
Official Notice in stating conclusions of law. However, the
statements at the end of the sentence about what was known in the art
are in the form of findings of Official Notice.
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