Appeal 2007-2220
Application 09/896,231
an appealable matter11 -- we nonetheless note that the Examiner addressed
the limitation in question on Pages 6 and 7 of the Answer and Page 8 of the
Final Rejection mailed Dec. 29, 2005.12
We also find unavailing Appellants’ argument pertaining to the
alleged insufficiency of the evidentiary support for the Examiner’s Official
Notice assertions. To be sure, an Examiner’s use of Official Notice
unsupported by documentary evidence should only be taken when the facts
so noticed are "capable of such instant and unquestionable demonstration as
to defy dispute." See In re Ahlert, 424 F.2d 1088, 1091 (CCPA 1970)
(citations omitted). Moreover, if the Examiner's assertion of Official Notice
is adequately traversed, the Examiner must provide documentary evidence in
the next Office Action to maintain the rejection. MPEP § 2144.03(C), Rev.
5, Aug. 2006 (“MPEP”).13
Here, the record amply reflects that each assertion of Official Notice
(Answer 9-13, 16, 18, 19, 22) was supported by a corresponding prior art
reference. For clarity, the facts officially noticed by the Examiner with their
corresponding evidentiary support are summarized below:
11 See MPEP § 706.01 (“[T]he Board will not hear or decide issues
pertaining to objections and formal matters which are not properly before the
Board.”); see also MPEP § 1201 (“The Board will not ordinarily hear a
question that should be decided by the Director on petition….”).
12 See also Answer 11-13.
13 See also Lance Leonard Barry, Did You Ever Notice? Official Notice in
Rejections, 81 J. Pat. & Trademark Off. Soc. 129, 137-38 (1999).
13
Page: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
Last modified: September 9, 2013