Appeal No. 1999-0323 Page 10
Application No. 08/079,504
Thus, the examiner has not satisfied his burden of
presenting a prima facie basis for a rejection of claims 43
and 44 based on the recapture doctrine.
Furthermore, the recapture doctrine clearly does not
apply to the facts of this case. In that regard, it is our
opinion that the presently claimed limitation "position
sensitive detector having . . . an area sufficiently small
to keep the capacitance down so the speed is up" is plainly
narrower in scope than the previously claimed limitation
"small area position detector". Accordingly, it is clear to
us the examiner's rejection of claims 43 and 44 is in error.
CONCLUSION
To summarize, the decision of the examiner to reject
claims 43 and 44 is reversed.
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