Appeal No. 2003-0221
Application 09/670,929
appeal by arguing in the response filed August 27, 2001 (Paper
No. 3) that such a factual assertion was not properly Officially
Noticed. In our view, appellant’s traversal of the rejection of
claim 4 and express assertion in Paper No. 3 that it was not
conceded that use of an adhesive strip in the manner set forth in
claim 4 on appeal is notoriously old or common, operates as both
a challenge to the examiner’s position and a demand for proper
evidence to support the obviousness rejection.
Since the examiner has failed to provide any documentary
evidence to show that use of an adhesive strip in the manner
required in claim 4 on appeal was old and well known in the art
at the time of appellant’s invention and that it would have been
obvious to one of ordinary skill in the art to so use such an
adhesive strip on the shelf or support panel (34) in the
container of Teasdale, we are compelled to reverse the examiner’s
rejection of claim 4 based on Teasdale and Official Notice.
However, we find no challenge by appellant in Paper No. 3
regarding the examiner’s use of Official Notice concerning the
limitations of claims 5 and 6 on appeal, i.e., with regard to
having more than one row of openings on a support panel like that
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