How does an examiner’s use of official notice affect the burden of proof in patent examination?

How does an examiner’s use of official notice affect the burden of proof in patent examination?

An examiner’s use of official notice can significantly impact the burden of proof in patent examination. Here’s how it affects the process:

1. Initial burden on examiner: The examiner must provide a rationale for using official notice, explaining why the asserted fact is considered well-known or common knowledge.
2. Shift to applicant: If the applicant does not challenge the official notice, the burden shifts to the applicant to prove that the asserted fact is not well-known.
3. Applicant’s challenge: If the applicant adequately traverses the official notice, the burden shifts back to the examiner to provide documentary evidence.
4. Examiner’s response: The examiner must then either provide evidence or withdraw the rejection based on official notice.

The MPEP 2144.03(C) states:

“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.”

This dynamic interaction between the examiner and applicant regarding official notice ensures that the burden of proof is appropriately balanced and that assertions of well-known facts are properly substantiated when challenged.

To learn more:

• official notice
• burden of proof
• patent examination
• examiner
• applicant