Interference No. 103,208
Hoshino et al. v. Tanaka
his discretion, on account of this new line of argument, in
determining that Hoshino failed to set forth a prima facie
basis for relief. In any event, however, Hoshino’s argument
is both speculative and presumptuous, and is rejected.
That Tanaka did not specifically describe using the sign
of the defocus amount until the second Japanese priority
application and a first order term of the defocus amount until
the instant directly involved U.S. application does not
demonstrate something
significant regarding the obviousness or unobviousness of
using the sign of the defocus amount or a first order term
thereof. In our view, it is without basis for Hoshino to
conclude that the reason Tanaka did not describe a particular
embodiment is that the embodiment was not obvious to Tanaka.
Tanaka’s first Japanese priority application may not contain a
written descrip- tion of Hoshino’s proposed new counts 2, 3,
and 4, but it is a long and fanciful stretch from there to
conclude that the lack of description demonstrates
nonobviousness to Tanaka.
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