Appeal No. 1997-1430
Application No. 08/225,756
Betzig to supply the missing teaching of utilizing a hook-
shaped probe configuration for passing light to or from a
measured sample. In support of the 35 U.S.C. § 103 rejection,
the Examiner offers two separate rationales in support of the
conclusion of obviousness. Initially, the Examiner asserts
(Answer, page 5, section C) the art recognized functional
equivalence of Betzig’s hook-shaped probe and the probe
illustrated in Figure 5 of Fujihira. Secondly, the Examiner
(Answer, page 5, section B) cites a passage from column 7 of
Betzig which sets forth the advantages of a hook-shaped probe
(i.e. the probe tip is exposed to the sample regardless of the
orientation of the probe supporting structure) as a motivating
factor for substitution of Betzig’s hook-shaped probe for the
Figure 5 probe of Fujihira. Barrett is additionally added to
the combination as providing a teaching of vertically
vibrating an optical probe relative to a sample to be
measured. In the Examiner’s view, the skilled artisan would3
3As correctly pointed out by Appellants (Brief, page 10),
Barrett has been applied solely to address the vertical
vibration feature, a feature which appears only in dependent
claims 15, 22, and 29.
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