Appeal No. 96-2953
Application 08/258,565
proof by evidence when the proposition at issue is not
supported by a teaching in a prior art reference, common
knowledge or unquestionable demonstration. Our reviewing
court requires this evidence in order to establish a prima
facie case. In re Knapp-Monarch Co., 296 F.2d 230, 232, 132
USPQ 6, 8 (CCPA 1961); In re Cofer, 354 F.2d 664, 668, 148
USPQ 268, 271-72 (CCPA 1966).
Thus, we will not sustain the 35 U.S.C. § 102(b)
rejection of independent claims 1, 6 and 26, and likewise the
rejection of claims 2, 3, 8 , 9 and 27 through 30 which depend3
therefrom and contain the same limitations.
The Examiner has rejected claim 7 under 35 U.S.C. §
103 as unpatentable over Barber in view of Huggins. Huggins
is applied for its teachings regarding prisms. However,
Huggins does not supply the claim 6 limitation missing in
Barber (i.e., “said beam having an angle 2 relative to a
normal to said movable diffraction plate so that sin(2)=±8/p”)
as noted supra. Thus claim 7, which contains this limitation
3 It is noted that claims 8 and 9 are the same as claims
29 and 30 except for the word “collimated” which does not
appear to have an antecedent basis.
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