In addition, the appellant has cited several decisions [Becket v. Coe, 98 F.2d 332, 38 USPQ 26 [24 CCPA 992] (App.D.C. 1938); Ex parte Selby, 153 USPQ 476 (Pat.Off.Bd.App. 1966); Ex parte Thumm, 132 USPQ 66 (Pat.Off.Bd. App. 1960)] purportedly standing for the proposition that even where a claimed range is inclusive of, falls within or overlaps that taught by a reference, the claim may be patentable over the reference. The board concluded, however, that the facts of this case were much "more closely akin to the facts in such cases as" In re Perkins, 346 F.2d 981, 52 CCPA 1501 (1965); In re Nehrenberg, 280 F.2d 161, 47 CCPA 1159 (1960); and Ex parte Cook, 105 USPQ 504 (Pat.Off.Bd.App. 1958); and concluded that each of the examiner's rejections should be sustained "on the basis that the claimed range of carbon content is anticipated by the ranges taught by each of Goss and Crede et al. * * *." (Emphasis ours.)
Where the appellant has failed to challenge a fact judicially noticed and it is clear that he has been amply apprised of such finding so as to have the opportunity to make such challenge, the board's finding will be considered conclusive by this court. In re Perkins, 346 F.2d 981, 52 CCPA 1501 (1965); In re Knapp Monarch Co., supra. These aspects of judicial notice are primarily procedural, however, designed with the purpose in mind of fully utilizing the independent and specialized technical expertise of the Patent Office examiners while balancing the applicant's rights to fair notice and an opportunity to be heard. Equally important is the question of what role the facts so found may play in the evidentiary scheme upon which a rejection of claims is based.