Appeal 2007-1787
Application 10/742,187
the hopper doors in order to more precisely determine the locations to dispense the
ballast. See KSR, 127 S.Ct. at 1740, 82 USPQ2d at 1396 (“[I]f a technique has
been used to improve one device, and a person of ordinary skill in the art would
recognize that it would improve similar devices in the same way, using the
technique is obvious unless its actual application is beyond his or her skill.”)
Appellants have failed to persuade us of error in the Examiner’s
determination of obviousness, and we thus sustain the Examiner’s rejection of
claim 13 as unpatentable over Bounds and Anderson.
The rejection of claim 14 as unpatentable over Bounds and Anderson
Appellants contend, in addition to the arguments presented with respect to
claim 13, that “neither Bounds nor Anderson discloses use of differential GPS
signals for enhanced precision of the railcar location” (Appeal Br. 9). The
Examiner took Official Notice that “using differential GPS in navigation systems
was well known in the art at the time of the invention”, and therefore held that it
would have been obvious to one of ordinary skill in the art at the time of the
invention “to use differential GPS in the invention of Bound and Anderson et al.
because such modification would provide a more exact measured position”
(Answer 5).
The Examiner may take notice of facts or common knowledge in the art
which are capable of such instant and unquestionable demonstration as to defy
dispute. In re Ahlert, 424, F.2d 1088, 1091, 165 USPQ 418, 420 (CCPA 1970). If
Appellant fails to challenge the Examiner’s notice and it is clear that he has been
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