Tuesday, December 11, 2012

"Official notice" addressed in Ex parte Park

Within Ex parte Park :

We also agree with the Examiner that Appellants did not traverse the taking of Official Notice in a proper and timely manner.3 To adequately traverse such a finding, 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. See 37 CFR 1.111(b). See also In re Chevenard, 139 F.2d 711, 713 (CCPA 1943) (“[I]n the absence of any demand by appellant for the examiner to produce authority for his statement, we will not consider this contention.”).

As to arguments in a Reply Brief:

These arguments are deemed waived. Appellants have not explained why, nor is it apparent that, these arguments were necessitated by a new point in the Answer or any other circumstance constituting “good cause” for its belated presentation. See Ex parte Borden, 93 USPQ2d 1473, 1473-74 (BPAI 2010) (“informative” ) (absent a showing of good cause, the Board is not required to address argument in Reply Brief that could have been presented in the principal Brief).


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