Appeal 2007-3322
Application 09/947,094
the Applicants advance only that single argument. The argument is
unpersuasive of error.
It is not an issue in dispute that both Rand and Hochstein disclose a
string or array of LEDs including a sampling LED the light intensity of
which is sensed. It is also not an issue in dispute that the sampling LED in
either Rand or Hochstein is not configured to emit light in a direction altered
from the direction of light emitted from the rest of the LEDs in the LED
string or array. With regard to the claim feature in all claims except claim
31 that the sampling LED emits light in a direction altered from that at
which light is emitted from the rest of the LEDs, the Examiner cited In re
Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950), as authority to the
effect that a mere change in location of a device component is well within
the level of ordinary skill in the art.
The authority cited by the Examiner, In re Japikse, supra, does not set
forth a general rule that a mere change in location of a component is always
within the level of ordinary skill in the art. In that case, the Board
determined that although the claimed location required by claim 3 for a
particular component is not met by the prior art, the different location did
not modify the overall operation of the claimed device and therefore there
was “no invention.” On review, the Court of Customs and Patent Appeals
simply stated that it found no error in the holding. The key lies in the
question to what extent the changed location affects system operation. The
Applicants dispute that the respective disclosure of Rand and Hochstein
differs from the subject matter of independent claims other than claim 31 in
merely the “position” of a sampling LED. The Applicants note that the
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