Appeal No. 2001-1072
Application No. 09/087,141
Claims 1 through 34 and 45 stand rejected under 35 U.S.C. § 103(a) as being unpatentable
over Rogers ‘811 in view of Zayhowski.
Claims 35 through 44 and 46 stand rejected under 35 U.S.C. § 103(a) as being unpatentable
over Rogers ‘811 in view of Zayhowski and the Nelson publication.
Reference is made to the brief (paper number 15) and the answer (paper number 16) for the
respective positions of the appellants and the examiner.
OPINION
We have carefully considered the entire record before us, and we will sustain the
obviousness rejection of claims 35 through 44 and 46, and reverse the remainder of the rejections of
record.
Appellants have not challenged the propriety of combining the teachings of Zayhowski and
the Nelson publication with the Rogers patents and the Nelson patent. Appellants’ sole challenge to
all of the rejections of record is that the claims of Rogers ‘470 and Nelson are limited to a light
source that produces a probe beam that is diffracted, as opposed to reflected, off a portion of a
structure (brief, pages 4 through 6). The same argument is made concerning the teachings of Rogers
‘811 (brief, pages 5 and 6).
We agree with appellants’ argument that the claims of Rogers ‘470 and Nelson are limited to
a diffracted probe beam as opposed to a reflected probe beam. With respect to the teachings of
Rogers ‘811, we agree with the appellants that the probe beam 18 only produces diffracted beams 20
and 20' (Figure 1A; column 1, lines 40 through 48; column 5, lines 34 through 39). Appellants have
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