Appeal 2007-2070
Application 10/123,457
1 Claims 21, 43, 44, 49, 50, 65, and 66 rejected under 35 U.S.C. § 103(a) as
2 unpatentable over Treyz.
3 The Examiner found by taking official notice that the limitations added by
4 these claims were notoriously well known in the art, and concluded they were
5 therefore obvious variations on the teachings of Treyz (Answer 11-12).
6 The Appellants traversed the official notice (Br. 7).
7 The Examiner first took such official notice in the Non-Final Rejection mailed
8 October 3, 2005. The Appellants traversed this in their response to that action filed
9 January 3, 2006. Although the manner of the Appellants’ traversal was unusual, it
10 invoked USPTO rules that require the Examiner to provide evidence to support the
11 official notice. The Examiner has not yet entered such evidence into the record.
12 Because the Examiner has not yet placed such evidence in the record, and the
13 Examiner is required to do so to maintain the rejection according to the
14 requirements of either 37 C.F.R. § 1.104(d)(2) or MPEP 2144.03, the appeal as to
15 this obviousness rejection is not yet ripe for decision. We therefore remand this
16 appeal to the Examiner to place such evidence in the record.
17 REMAND
18 We remand this appeal to the Examiner pursuant to the provisions of 37 C.F.R.
19 § 41.50(a)(1). This remand is for two purposes:
20 (1) The appeal is remanded to the Examiner to consider whether claims
21 1-20, 22-42, 45-48, and 51-64 should be rejected under 35 U.S.C.
22 § 103(a) as unpatentable over Treyz.
11
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