Appeal No. 2000-2154
Application 09/136,761
as applied to claim[s] 1-6 above, and further in view of
official notice that grit type and size are old and well
known in the art..
Miller [sic] as modified by Held, teaches all the
limitations of the claims, except for the grit size and
type as claimed. The size of the grit and the type
specified in the claims present nothing more than old and
well known choices to one of ordinary skill in the art.
Appellant, on pages 15 and 16 of the brief, contends that
the PTO has not met its initial burden of proof as to the
rejection of claims 7 to 10, and notes that there is no
evidence in the applied prior art references that the claimed
abrasive materials and grit size are known. Notwithstanding
this, however, the examiner still states on page 4 and 5 of
the answer that:
the size of the grit and the type specified present
nothing more than old and well known choices to one of
ordinary skill in the art. Since this statement of fact
was not challenged, it has become fact in this
application and is therefore evidence.
This rejection will not be sustained. Here, where the
appellant did challenge the examiner’s statement by demanding
evidence that the officially-noticed facts were well known, it
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