Appeal No. 2005-1936
Application No. 09/864,198
Attention is directed to the main and reply briefs (filed
January 24, 2005 and May 9, 2005) and answer (mailed April 18,
2005) for the respective positions of the appellant and examiner
regarding the merits of this rejection.
DISCUSSION
I. The examiner’s rejection
The record in the instant application shows that:
a) the examiner entered the rejection at bar for the first
time in the final rejection;
b) the examiner subsequently conceded that the finality of
this rejection was premature and the result of inadvertent error
(see the advisory action mailed May 24, 2005);
c) the appellant seasonably challenged the Official Notice
by the examiner in the main brief, and then again in the reply
brief; and
d) the examiner did not advance evidentiary support for the
Official Notice in response to the appellant’s challenge as
required by MPEP § 2144.03.
In light of the foregoing, we shall not sustain the standing
35 U.S.C. § 103(a) rejection of claims 1 through 17. In short,
the factual basis proffered to support the rejection is fatally
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