Appeal No. 2006-2354 Page 17
Application No. 09/877,157
dated September 9, 2004. The appellants, in Reply to these Office Actions, never
contested the supposed errors in the examiner’s action. See Reply to Non-Final
Office Action dated June 7, 2004 and Reply to Final Office Action dated
November 2, 2004. The appellants now belatedly argue that the examiner’s
assertion that the features of claims 6 and 7 are “well known” and thus obvious is
not a proper basis for making an obviousness rejection. Brief, p. 16. We treat
these findings as admitted because the appellants failed to challenge them and it is
clear from the record that the appellants had ample opportunity to demand that the
examiner produce authority for his statements. See In re Chevenard, 139 F.2d 711,
712-13, 60 USPQ 239, 241 (CCPA 1944) (declining to consider the belated
challenge by an appellant to an examiner’s assertion as to “common knowledge” in
the art “in the absence of any demand by appellant for the examiner to produce
authority for his statement”). See also In re Soli, 317 F.2d 941, 947, 137 USPQ
797, 801 (CCPA 1963) (affirming a previously uncontested obviousness rejection
based on official notice).
We agree with the examiner that it would have been obvious to one having
ordinary skill in the art at the time of the invention, possessed with the knowledge
that the use of HTML and XML protocols for displaying data is well known in the
art, to generate an HTML or XML version of the policy in order to provide a
format that is universally viewable across a wide variety of computer platforms and
operating systems. As such, we find that the examiner made out a prima facie case
of obviousness of claims 6, 7, 17, and 18. Accordingly, we sustain the examiner’s
rejections of these claims under 35 U.S.C. § 103(a).
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