Appeal No. 2002-0348
Application No. 09/176,416
examiner has provided no convincing rationale (actually, the
examiner has provided no rationale at all) as to why the skilled
artisan would have been led to combine the various elements of
the two references in such a manner as to result in the instant
claimed subject matter. Most inventions are made from elements
that already exist in the prior art. But to show obviousness,
within the meaning of 35 U.S.C. 103, one must establish a reason
why the skilled artisan would have been led to combine those
known elements in the same manner as did applicant. The examiner
has established no such reason in the instant case.
Further, even if there were some reason to combine these
references, even the examiner admits that, together, the
Halverson and DeBusk references still do not teach the claimed
subject matter. That is why the examiner relies on “Official
notice.”
Appellant challenges the examiner’s taking of Official
notice [e.g., as to claim 3-principal brief-page 23]. Yet, the
examiner’s response [e.g., answer-page 12] is to merely state
that appellant has not provided any information that creates
“reasonable doubt regarding the circumstances justifying the
Official notice.” Accordingly, the examiner does not “deem” it
necessary to substantiate the taking of Official notice.
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