Appeal 2007-0611
Application 09/800,986
which were originally made in the Action mailed May 31, 2005, were not properly
traversed and, therefore, “the limitations under Official Notice are taken as
admitted prior art” (Answer 9). We sustain the Examiner.
If Appellant fails to challenge the Examiner’s notice and it is clear that he
has been given ample opportunity to make such challenge, the Examiner’s finding
will be considered conclusive. In re Ahlert, 424, F2d 1088, 1091, 165 USPQ 418,
421 (CCPA 1970). To challenge the Examiner’s notice, Appellant must present
evidence to the contrary. Compare In re Knapp-Monarch Co. 296 F.2d 230, 232
132 USPQ 6, 8 (CCPA 1961) (considering challenge to taking of judicial notice by
Trademark Trial and Appeal Board). In the present case, Appellant does not
present any evidence or make any assertions rebutting the Examiner’s statements,
but merely asserts that the Examiner has not provided any factual evidence.
Accordingly, even if Appellant’s statements were considered timely, Appellant still
fails to properly challenge the Examiner’s statements. As such, we sustain the
Examiner’s rejections of claims 7, 8, and 11-13 as unpatentable over Smith and
Puram.
CONCLUSIONS OF LAW
We conclude that Appellant has not shown that the Examiner erred in
rejecting claims 1, 3, 4, 6-8, and 11-13 under 35 U.S.C. §103(a) as unpatentable
over Smith and Puram.
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