Appeal No. 96-2953
Application 08/258,565
6, lines 11-44, as teaching that the gratings can be placed in
any order and the same results will be attained. (Answer at
page 7.) We agree with Appellants. McMurtry states (col. 6,
lines 17-21): “Where the order of the first, second and third
gratings is 12, 11, 13, the grating 14 may be situated
anywhere in the light path between the gratings 12, 13 but it
is advantageous for the grating 14 to be situated close to the
one or the another of the gratings 12, 13 because....”
McMurtry also states (col. 6, lines 27-36): “When the grating
14 is situated upbeam of the scale 11, the secondary orders
are generated before the primary orders... It is nonetheless
preferable to generate the secondary orders after the light is
incident upon the scale [11].” (Emphasis added.)
Thus, although McMurtry’s grating 14 may be moved,
we fail to see a teaching that “any order” of the gratings is
acceptable while “still attaining the same results” as alleged
by the Examiner. Other features of McMurtry lead away from
its use to modify Spies. McMurtry uses secondary orders of
diffraction (column 1, lines 61-63) as opposed to claim 15's
recited ±first orders of diffraction; McMurtry may use (and
appears to use) non-coherent light (column 2, line 35) and
15
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