Appeal No. 2001-0220
Application No. 09/244,044
the Answer finds no discussion of how Schmidt describes, within
the meaning of § 102, the claim limitation concerning the
location of the holes from the bottom of the dam. For the same
reason, we will not sustain the examiner's § 102 rejection of
claims 30 and 31 over each of Soofi '175 and Soofi '667.
We will sustain the examiner's rejection of claim 32 under
§ 103 over each of Soofi '667, Soofi '175 and Schmidt. Although
the examiner recognizes that none of the cited references
discloses the claimed "first and second mounting hooks that are
cast into said dam during its manufacture," the examiner has
taken official notice that it was "a well known expedient to
employ cast in place mounting means in refractory components in
order to allow fore [sic, for] easier movement by crane into
place" (page 4 of Answer, second paragraph). On the other hand,
appellant has not challenged the correctness of the examiner's
assertion and has not responded to the examiner's statement that
"[a] statement by the applicant that this is not an expedient
commonly known in the art . . . would overcome this rejection"
(page 6 of Answer, second paragraph). Rather, appellant has
simply responded that if this feature was so well known there
must be a reference that shows it, and that "[t]he burden is on
the Patent and Trademark Office to establish a prima facie case,
-6-
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