Thursday, July 25, 2013

"Official notice" issue in Ex parte Lee

Official Notice comes up in Ex parte Lee

Statements articulating technical reasoning in support of combining references are not the kind of statements to which the MPEP Section on Official Notice is directed. Moreover, for completeness, we note that even if the Examiner’s statement that “filtering is a very common method/technique in signal process” was considered to be Official Notice, an adequate traverse to an Examiner’s finding of Official Notice must “contain adequate information or argument” to create on its face “a reasonable doubt regarding the circumstances justifying the ... notice” of what is well-known to an ordinarily skilled artisan. In re Boon, 439 F.2d 724, 728 (CCPA 1971). “To adequately traverse such a finding [of Official Notice], an applicant must specifically point out the supposed errors in the examiner’s action, which would include stating why the noticed fact is not considered to be common knowledge or well-known in the art.” MPEP § 2144.03(C); see also 37 C.F.R. § 1.111(b); In re Chevenard, 139 F.2d 711, 713 (CCPA 1943). Appellants are challenging the statement as improper Official Notice, but have not alleged that filtering is not a “very common method/technique in signal processing.” Advisory Action, dated June 2, 2010. Indeed, both references, particularly Levi, discuss it. See, e.g., Levi, col. 3, ll. 51-67, col. 4. ll. 6, 48-53, et seq.

Accordingly, Appellants have not apprised us of any flaws in the Examiner’s reasoning.


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