Appeal 2007-1787
Application 10/742,187
given ample opportunity to make such challenge, the Examiner’s finding will be
considered conclusive. Id. at 1091, 165 USPQ at 421. Appellants’ statement that
there is no evidence supporting the Examiner’s conclusory opinion that use of
differential GPS in navigation systems was well-known is not a proper challenge.
To challenge the Examiner’s notice, Appellant must present evidence to the
contrary. Compare In re Knapp-Monarch Co. 296 F2d 230, 232, 132 USPQ 6, 8
(CCPA 1961) (considering challenge to taking of judicial notice by Trademark
Trial and Appeal Board). Nevertheless, the Examiner has provided, in response to
Appellants’ comments, the Barnard reference to support his taking of Official
Notice. In view of Appellants’ failure to properly and timely challenge the
Examiner’s taking of Official Notice and the additional disclosure of Barnard, we
find the Examiner’s findings regarding the use of differential GPS in navigation
systems conclusive.
Appellants further contend that “the examiner must provide evidence of a
teaching, suggestion or motivation in the prior art to actually make the specific
combination of claim 14” (Appeal Br. 9). In KSR, the Supreme Court noted that an
obviousness analysis “need not seek out precise teachings directed to the specific
subject matter of the challenged claim, for a court can take account of the
inferences and creative steps that a person of ordinary skill in the art would
employ.” KSR, 127 S.Ct. at 1741, 82 USPQ2d at 1396. The Examiner held that it
would have been obvious for one of ordinary skill in the art to replace the GPS
based system of Anderson with a differential GPS system in order to provide a
more exact measured position (Answer 5). Where, as here “[an application] claims
13
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