Appeal No. 2002-0984
Application 09/246,179
According to the examiner's stated rejection in the first office
action (Paper Number 5), the "Examiner's Notice" was explained as
follows:
The flow viscosity [sic, velocity] in the vicinity of the
probe appear [sic, appears] to be within that expected for a
typical stirred reaction mixture, or lacking a showing to
the contrary, not unobvious thereover. The Examiner takes
notice that determining what spectral absorptions to use and
calculation of the degree of reaction from the spectral data
is ordinary and well within the capabilities of one of
ordinary skill in the art. It also would be considered to be
obvious to one of ordinary skill in the art to take
measurements at appropriate time intervals to follow the
course of the reaction. Such intervals would appear to be
well within the time intervals of the instant claims or not
unobvious thereover.
In responding to the examiner's rejection, appellants challenged
the "Examiner's Notice" as not being founded on any underlying
evidence which supported the examiner's conclusions of
obviousness. The appellants asserted that the claimed process was
not obvious for any of the reasons given by the examiner (Paper
Number 7).
In the final rejection (Paper Number 9) the examiner
responded to appellants by stating it was not clear "what
argument applicant would make to cast a reasonable doubt on the
circumstances regarding the Examiner's Notice." The examiner
concluded that only after appellants presented an argument
casting reasonable doubt on the "Examiner's Notice" would he be
forthcoming with the references he alleged to possess and which
references would also establish "these well known facts."
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