Appeal No. 1998-0995
Application 08/387,298
means for determining a time period in which there is no change in the amount of reflected
light and a vibration angle adjuster means for scanning the bar
codes while changing the angle of vibration of the vibrating mirror, wherein said vibrating
angle adjuster means stepwisely decreases the angle of vibration of the vibrating mirror in
order to stepwisely decrease the scanning region for the bar codes when said determining
means determines said time period to be longer than a predetermined value.
Furthermore, we fail to find that Bianco suggests such a modification.
We are not inclined to dispense with proof by evidence when the proposition at
issue is not supported by a teaching in a prior art reference or shown to be common
knowledge of unquestionable demonstration. Our reviewing court requires this evidence in
order to establish a prima facie case. In re Piasecki, 745 F.2d 1468, 1471-72, 223
USPQ 785, 787-88 (Fed. Cir. 1984); 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). Furthermore, our reviewing court states in In re Piasecki, 745 F.2d 1468,
1472, 223 USPQ 785, 788 (Fed. Cir. 1984) the following:
The Supreme Court in Graham v. John Deere Co., 383 U.S. 1 (1966),
focused on the procedural and evidentiary processes in reaching a
conclusion under section 103. As adapted to ex parte procedure, Graham is
interpreted as continuing to place the "burden of proof on the Patent Office
which requires it to produce the factual basis for its rejection of an
application under sections 102 and 103". Citing In re Warner, 379 F.2d
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