How can an applicant challenge an examiner’s use of official notice?

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 applicant can challenge an examiner’s use of official notice by following these steps:

1. Traverse the official notice: The applicant should specifically traverse the use of official notice in their response to the Office action.
2. Request evidence: As stated in MPEP 2144.03(C): “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.”
3. Provide contrary evidence: If possible, the applicant should provide evidence that contradicts the examiner’s assertion of common knowledge.
4. Wait for examiner’s response: The examiner must then provide documentary evidence in the next Office action if the rejection is to be maintained.

If the applicant does not traverse the examiner’s assertion of official notice, the common knowledge or well-known in the art statement is taken to be admitted prior art.