Appeal No. 2002-0984
Application 09/246,179
the opportunity to make a challenge. (citations omitted)
Where the appellant has failed to challenge a fact
judicially noticed and it is clear that he has been amply
apprised of such finding so as to have the opportunity to
make such challenge, the board's finding will be considered
conclusive by this court. (citations omitted)
The examiner's action here is exacerbated because his findings,
disguised in the nature of the "Examiner's Notice", have not been
shown to be facts, have not been supported by citations to any
reference, have been challenged by appellants and go to the very
limitations in the claimed process which may be considered to
distinguish the claimed process from the prior art. Our reasoning
in support of this statement follow immediately below.
We find each of the Doyle references on which the examiner
has relied is evidence which establishes that IR-ATR spectroscopy
has been used to monitor a variety of chemical reactions,
including reactions conducted in "kettles" which are closed
vessels in which the reactants to be reacted are contacted and
stirred. The disclosure in Berard is extremely similar to that in
the Doyle references. Further, Berard includes two specific
examples of monitoring the progress of chemical reactions using
IR spectroscopy, specifically optical fiber cylindrical internal
reflectance. In one example the conversion of an aldehyde to the
corresponding alcohol was measured by measuring instantaneously
during the reaction the concentration of the aldehyde versus the
concentration of the alcohol. In another example the preparation
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