Appeal No. 1998-2497
Application No. 08/472,275
Turning to the rejection before us, based on 35 U.S.C.
103, we reverse.
The examiner’s statement of rejection with regard to
independent claims 1 and 15 cites Kahlman as disclosing all
that is claimed but, unlike claims 1 and 15, Kahlman provides
a “P/S converter 2 prior to all other elements rather than
performing parallel to serial conversion after “0" and “1" bit
insertion.” However, the examiner takes “Official Notice”
that the selection of parallel processing or serial processing
would have been an obvious design choice and so it would have
been obvious to have applied parallel processing to
Kahlman....
As pointed out by appellant, the examiner has applied
“Official Notice” at the point of novelty of the invention.
Clearly this is improper. But even if the examiner had a
reasonable basis for invoking “Official Notice,” appellant has
challenged this assertion and placed the burden on the
examiner to establish, by evidence, that the allegation
regarding what was known, is true. The examiner has failed to
present any evidence, preferring, instead, to merely allege,
6–
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