Appeal 2006-2864
Application 10/211,746
(CCPA 1982) (applicant's admission of actual knowledge of the prior
invention of another, described in the preamble of a Jepson claim, held to
constitute an admission that described invention was prior art to the
applicant).
2) The Examiner may take official notice of facts unsupported by
documentary evidence where the facts are asserted to be well-known, or
to be common knowledge in the art and are "capable of such instant and
unquestionable demonstration as to defy dispute" In re Ahlert, 424 F.2d
1088, 1090, 165 USPQ 418, 420 (CCPA 1970) (holding that the Board
properly took judicial notice that "it is old to adjust intensity of a flame in
accordance with the heat requirement").
3) Board may affirm a rejection under 35 U.S.C. § 103 based on
Examiner’s official notice of facts, without citation of references, where
Appellant was sufficiently put on notice of the basis of the rejection and
did not challenge the truth of the Examiner's assertion. See In re
Lundberg, 244 F.2d 543, 551, 113 USPQ 530, 537 (CCPA 1957)
(examiner's statement accepted as true in light of appellant's failure to
question its accuracy or to present contradicting evidence); In re Fox,
471 F.2d 1405, 1406-07, 176 USPQ 340, 341 (CCPA 1973) (affirming
rejection under 35 U.S.C. § 103 without citation of any prior art based on
facts that were unchallenged by the appellant).
4) The criterion for determining whether a rejection is considered
“new” is whether the appellants have had an opportunity to respond to
the “thrust of the rejection.” See In re Kronig, 539 F.2d 1300, 1302,
190 USPQ 425, 426 (CCPA 1976). See also, In re De Blauwe, 736 F.2d
699, 706 n. 9, 222 USPQ 191, 197 n. 9 (Fed. Cir. 1984).
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