Appeal No. 1998-2295
Application No. 08/435,902
and 12. The addition of the Blackburn reference also does not remedy the deficiency in the
teachings of Quets. We therefore reverse the rejection of claims 9, 10, 11, 12, 13 and 15 to
20.
We note the Examiner has taken official notice regarding several features of the
claimed invention throughout the prosecution of this application. The Examiner has refused
to provide evidence of the various embodiments of the claimed invention even thought the
Appellants have seasonably requested the Examiner provide this information. (See MPEP
§ 2144.03). Once Appellants have seasonably and adequately challenged the facts alleged to
be common knowledge, the burden of proof in on the Examiner to provide evidence to
support his findings. Cf. In re Lee, 277 F3d 1338, 1342-43, 61 USPQ2d 1430, 1433 (Fed.
Cir. 2002).
CONCLUSION
The rejection of claims 1, 3, 4, 7 and 8 under 35 U.S.C. § 103(a) as obvious over the
combination of Wolfla and Hodshire is affirmed. The 35 U.S.C. § 103(a) rejections of
claims 2, 6, 9, 10, 11, 12, 13 and 15 to 20 are reversed.
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