When can an examiner take official notice without documentary evidence?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

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.