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PRIMA FACIE CASE: Examiner Affidavit.

posted Jan 13, 2013, 5:31 PM by Robert Crownover
When Examiners state that an element is known or well-known in the art, the Applicant can challenge this assertion by requesting an Examiner Affidavit. An Examiner Affidavit may also be requested when the Examiner's construction of a term is grossly overbroad. 

In both cases the traversal would look something like: 
"Since REFERENCES do not show ELEMENT, the Examiner must be relying on his own personal knowledge. Applicants, therefore, request an Examiner Affidavit pursuant to 37 CFR 1.104(d)(2), which states:"

WARNING: when personal knowledge of the examiner is not explicit, the assertion by the Examiner may be construed to be "Official Notice".  Official Notices traversals must follow a specific set of rules in order to preserve the issue during prosecution, litigation, and appeal. If Official Notice is not timely traversed the asserted facts can be deemed admitted prior art.

Case Law:
When a rejection in an application is based on facts within the personal knowledge of an employee of the Office, the data ... must be supported, when called for by the applicant, by the affidavit of such employee, and such affidavit shall be subject to contradiction or explanation by the affidavits of the applicant and other persons. [deletion for clarity]