Appeal No. 96-0069
Application 08/110,493
It should be noted that claim 13 as reproduced above
specifically recites an optical article having the shape of a
solid regular pyramid in which the sides of the pyramid meet at
the apex of the pyramid. The corresponding device in Koechner
which may be “pyramidal” is the laser module bounded by faces 8
and 9 and concentrator 7. This device in Koechner is described
as a “truncated pyramid” [column 4, line 30]. A truncated
pyramid is a pyramid in which the top portion has been cut off.
Therefore, the truncated pyramid of Koechner does not have
triangular faces which meet at the apex of the pyramid as recited
in the claimed invention.
The examiner never recognizes this difference between the
“pyramid” of Koechner and the pyramid as specifically recited in
claim 13. The examiner’s position simply assumes that the
pyramid of Koechner meets the pyramid of the claims which is not
the case. Consequently, the examiner never addresses why the
pyramid as recited in the claims would have been obvious to the
artisan in view of the truncated pyramid of Koechner. The
failure of the examiner to even acknowledge the difference
between Koechner’s truncated pyramid and the pyramid of the
claims results in a failure by the examiner to establish a prima
facie case of obviousness. While we are not able to say whether
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