Appeal No. 1999-1110
Application No. 08/665,755
Upon challenge by appellant to provide evidence of these things that the examiner
claims are ”well known and common knowledge,” that are “deemed” to include certain
circuitry and are “taken for granted” or “obvious design choices,” the
examiner has responded by citing no evidence of these allegations even though the
burden was shifted to the examiner, once challenged by appellant, to establish that which
is considered to be well known and common knowledge, etc. When an examiner judicially
notices a feature as being old in the art and such is challenged, there is reversible error
when the examiner fails to cite the well known thing on which he relies. Ex parte Nouel, 158
USPQ 237 ( Bd. of App. 1967).
Deficiencies in the factual basis cannot be supplied by resorting to speculation or
unsupported generalities. In re Freed, 425 F.2d 785, 787, 165 USPQ 570, 571 (CCPA
1970); In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA 1967).
Accordingly, the examiner has failed to present a prima facie case of obviousness
with regard to the subject matter of instant claims 1-20.
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