Tuesday, September 9, 2008

"Well Known" asserted by Examiner

The Action rejects claim 11 under 35 U.S.C. § 103(a) as allegedly being unpatentable over Cheung in view of what was alleged to be well-known in the networking art. The Action states that “the use of expiration dates for assigned attributes were well-known at the time of the invention.” Applicants disagree, and traverse. Applicants respectfully request that the examiner produce authority for his statement that “the use of expiration dates for assigned attributes were well- known at the time of the invention. “See Zurko, 258 F.3d at 1386, 59 USPQ2d at 1697 ("[T]he Board [or examiner] must point to some concrete evidence in the record in support of these findings" to satisfy the substantial evidence test). If the examiner is relying on personal knowledge to support the finding of what is known in the art, the examiner must provide an affidavit or declaration setting forth specific factual statements and explanation to support the finding. See 37 CFR 1.104(d)(2).” MPEP 2144.03

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