Appeal No. 2002-1255 Page 4
Application No. 09/271,440
In the rejection (answer, pp. 2-4) under 35 U.S.C. § 103 before us in this appeal,
the examiner (1) stated that "[t]he primary reference [Horie] discloses the use of a
magneto optical disk recording and reproducing apparatus comprising: a light source
21, means for directing the light beam to the disk fig[.] 7 elements 22-29, a micro[-]
machine[d] steerable mirror [assembly] for fine tracking control 35, and an optical fiber
26;" (2) ascertained2 that the primary reference to Horie does not disclose the use of an
arm (flying type head) as claimed; (3) stated that "[t]he use of an optical flying type
head is shown in the secondary reference [Makigaki] as an alternative equivalence (see
fig[.] 2 (flying type)) to a linear type (fig[.] 4) optical head depending on the head
positioning path being straight or accurate;" and (4) concluded that "it would have been
obvious to one skilled in the art at the time the invention was made to use the teaching
of the secondary reference [Makigaki] and modify the primary reference [Horie]."
The appellants argue (supplemental brief, pp. 37-40) that Horie does not
disclose a steerable mirror assembly as recited in the independent claims on appeal
(i.e., claims 86, 89, 96, 102, 111, 113, 117 and 119) and therefore the examiner's
proposed modification to Horie based on the teachings of Makigaki would not arrive at
the claimed invention. We agree.
2 After the scope and content of the prior art are determined, the differences between the prior art
and the claims at issue are to be ascertained. Graham v. John Deere Co., 383 U.S. 1, 17-18, 148 USPQ
459, 467 (1966).
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