Appeal No. 1999-0236
Application 08/624,173
to the image (col. 4, lines 36-42). Different wavelengths
will produce a focus at different distances. An image of the
optically readable image that is in proper focus will properly
decode, while out-of-focus images will not properly decode.
THE REJECTION
Claims 1, 2, 4-6, 8-16, 18, and 19 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Sherman, Hanson,
and Honda. The Examiner finds that Sherman discloses the2
In the first Office action (Paper No. 3), the Examiner2
rejected claims 1-17 "under 35 U.S.C. 103(a) as being
unpatentable over the prior art cited herewith in view of that
cited by the applicant" (Paper No. 3, p. 2). The final
rejection (Paper No. 5) maintained the rejection in the first
Office action and added Sherman. The following patents were
mentioned in the first Office action, but not in the
examiner's answer:
Howard 3,169,186 February 9, 1965
Taniguchi 4,677,285 June 30, 1987
Droge 5,291,028 March 1, 1994
Nakazawa 5,340,982 August 23, 1994
Bobba et al. 5,475,207 December 12, 1995
Marchi 5,483,051 January 9, 1996
Arackellian et al. 5,504,367 April 2, 1996
(filed March 21, 1994)
Because these references are not mentioned in the examiner's
answer, we presume the rejection over these references has
been withdrawn. See Ex parte Emm, 118 USPQ 180, 181 (Bd. App.
1957) (rejection not referred to in the examiner's answer is
assumed to have been withdrawn).
The examiner's answer appears to raise a new ground of
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