Appeal No. 2000-1961
Application 08/840,200
Appellants argue that the missing limitations are not of
such a notorious character as to admit of Official Notice (Br10).
Again, the examiner is not so much taking Official Notice of
a notorious fact, as making a conclusory statement for a
modification based on made-up reasons without any factual
evidence in support. In this case, we agree that a reference is
necessary. It is not sufficient to make up plausible reasons for
a modification because there is no way for us or our reviewing
court, the U.S. Court of Appeals for the Federal Circuit, to
determine whether the reasons are factually correct. Since none
of the references deals with measuring the time between opening
and closing of a device, the examiner's reasons appear to be
based on pure hindsight. We conclude that the examiner has
failed to establish a prima facie case of obviousness with
respect to claim 18. The rejection of claim 18 is reversed.
Claim 19
Claim 19 refers to the method of claim 16 "further
comprising the step of modifying said time-based data set based
on time-related changes occurring in the operating
characteristics of said mechanism during the on-line operation of
said mechanism." The "time-based data set" must refer to the
"time-based baseline data set."
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