Appeal No. 96-1850
Application No. 08/218,000
We agree with the examiner that the light has to exit the box
to strike the specimen grating. We do not, however, agree
with the examiner that the exit point in the box for the light
has to be in the configuration claimed by appellants. The
aperture teachings of Perkins are of no help because the
apertures 144 and 145 in the outer wall of the box (Figure 7)
are located there to support shafts that extend into the box
(column 6, lines 43 through 48). The opposite wall of the box
has only one aperture 130 for entry of radiation 100 (column
6, lines 22 through 26) (Brief, page 6). The only teaching of
record that shows the claimed configuration of the apertures
is appellants’ disclosed and claimed invention, and it is not
available to the examiner in an obviousness determination.
In summary, the 35 U.S.C. § 103 rejection of claims 1
through 9 is reversed because the applied references neither
teach nor would they have suggested to one of ordinary skill
in the art the claimed configuration of the apertures in the
box that houses the portable moire interferometer.
In light of the reversal of the obviousness rejection, we
will not offer any comments on appellants’ evidence of
commercial success in the affidavit attached to the brief.
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