Appeal 2007-3322
Application 09/947,094
None of the claims specifies the degree of alteration of the direction of
light emission from the sampling LED relative to that of the other LEDs.
Although the disclosed preferred embodiments implement a changed
direction of 180 degrees, it is improper to read into the claims extraneous
limitations from the specification which are not otherwise in the claims. A
changed direction of as little as a half of a degree satisfies the direction
alteration aspect of the claims on appeal. In that connection, the Examiner is
correct that one with ordinary skill in the art would expect no difference
whatsoever between operation of the systems in each of Rand and Hochstein
and that according to the claimed invention. In other words, an altered
direction of light emission from the sampling LED, within the broad scope
as specified in the claims, is without substantive significance.
In KSR International Co., 127 S. Ct. at 1742, 82 USPQ2d at 1397,
within the context of determining obviousness, the Supreme Court stated:
“Rigid preventive rules that deny factfinders recourse to common sense,
however, are neither necessary under our case law nor consistent with it.”
Small changes and variations which serve no meaningful purpose and which
have no functional significance are within the level of ordinary skill in the
art to make and require no corresponding teaching from the prior art. The
specification reveals no advantage to be gained or any solution to be
achieved by varying the direction of light emission from a sampling LED by
a small angle such as an angle less than one degree. An LED may exhibit
that variance relative to the other LEDs simply as a result of imprecise
mounting.
As a matter of common sense one with ordinary skill in the art would
have recognized that the direction of light emission of the sampling LED
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