Appeal No. 2000-1243
Application 08/826,112
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 and the appellant given, in the Patent Office, the
opportunity to challenge the correctness of the
assertion or the notoriety or repute of the cited
reference. Cf. In re Cofer, 53 CCPA 830, 354 F.2d 664,
148 USPQ 268 (1966), In re Borst, 52 CCPA 1398, 345
F.2d 851, 145 USPQ 554 (1965). Allegations concerning
specific "knowledge" of the prior art, which might be
peculiar to a particular art should also be supported
and the appellant similarly given the opportunity to
make a challenge. See In re Spormann, 53 CCPA 1375,
363 F.2d 444, 150 USPQ 449 (1966).
See also In re Lee, 277 F.3d 1338, 61 USPQ2d 1430, 1435 (Fed.
Cir. 2002) (noting that In re Zurko, 258 F.3d 1379, 1385,
59 USPQ2d 1693, 1697 (Fed. Cir. 2002), explains that
"deficiencies of the cited references cannot be remedied by the
Board's general conclusions about what is 'basic knowledge' or
'common sense'").
Second, assuming for the sake of argument that one skilled
in the art would have known the values of the real and imaginary
components of the index of refraction of antimony sulfide,
Nagashima and Horikago fail to demonstrate that one skilled in
the art would have understood those values to mean that antimony
sulfide is capable of reflecting and transmitting sufficient
amounts of light of the same wavelength so as to permit it be
used to form the semi-transparent layer (3) in Nagashima.
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