When can an examiner take official notice without documentary evidence?

An examiner can take official notice without documentary evidence in certain circumstances where the facts are considered well-known or common knowledge in the art. According to MPEP 2144.03, this is permissible when the facts are “capable of instant and unquestionable demonstration as being well-known.”

The MPEP states:

“Official notice without documentary evidence to support an examiner’s conclusion is permissible only in some circumstances. It is always preferable, when reasonably possible, for the examiner to cite a prior art reference rather than to rely on official notice.”

However, examiners should use this judiciously, especially in final rejections or actions under 37 CFR 1.113.

To learn more:

• official notice
• patent examination
• common knowledge
• well-known facts