Appeal No. 1999-0878
Application 08/182,093
This is a single reference § 103(a) rejection and, thus,
it would be expected that the differences between Lee and the
claimed subject matter are trivial and can be accounted for by
minor obviousness reasoning based on the knowledge of those
skilled in the art. That is not the case. The Examiner
provides no factual evidence for the statement that
"insulating substrates [sic, layers?] formed directly on chip
surfaces are not new in this art and are typically provided
thereon" (FR2). In effect, the Examiner takes Official Notice
of this fact to avoid having to produce a reference. Official
Notice should not be used except where the proposition at
issue is supported by 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). Cf. In re Eynde, 480 F.2d 1364, 1370, 178 USPQ 470,
474 (CCPA 1973) (court will not take judicial notice of the
state of the art). "Assertions of technical facts in areas of
esoteric technology must always be supported by citation to
some reference work recognized as standard in the pertinent
art . . . ." In re Ahlert, 424 F.2d 1088, 1091, 165 USPQ 418,
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