Appeal No. 1998-2473
Application No. 08/556,890
These advantages, contend appellants, include operation at any wavelength for which a
suitable lens is available; maximum variation in focal position is greater; and adjustment of
the lens position may be made in both perpendicular and parallel directions with respect to
the surface. We are again unpersuaded by appellants’ argument since it is not clear as to
which elements appellants refer, no specific distinguishing claim language is referenced
by appellants and the instant claim language contains none of the limitations argued by
appellants as distinguishing advantages of the instant claimed invention over that
disclosed by Mickleson. For example, there is nothing in the appealed claims relative to
adjusting the position of the lens in both perpendicular and parallel directions relative to the
surface and there is no language in the claims distinguishing variation in position as being
of such a magnitude as to distinguish over a relatively small variation in the focal position
suggested by Mickleson.
Since we do not agree with any of the arguments made by appellants regarding the
rejection based on Mickleson, we will sustain the rejection of claims 1, 3 and 6 under 35
U.S.C. § 103 over Mickleson. We do not contend that appellants could not have presented
arguments that may have distinguished the instant claims over Mickleson. We hold only
that, to whatever extent such arguments exist, appellants
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