Appeal No. 1999-0236
Application 08/624,173
Appellant argues that "none of the references suggest or
disclose 'exciting said at least two laser diodes at a first
intensity level to properly focus the electro-optical element
on the symbol and at a second intensity level to illuminate
the symbol sufficiently for scanning by the electro-optical
element,' as recited in independent Claims 1 and 18" (Br6).
Claims 6 and 15 include similar language. Appellant argues
that Sherman alternates the LED between "on" and "off" states
during the duty cycles and, when "on," only one intensity
level is disclosed for this beam, and, when "off," it does not
produce a beam that can be used for either focusing or
illuminating the bar code (Br12). Appellant argues that even
if the "off" portion of the duty cycle is construed as a
second intensity level, Sherman does not perform focusing
during this portion of the duty cycle (Br11-12). Appellant
argues that Sherman is not concerned with focusing at all. It
is argued (Br12) that the translucent window 38 of the
scanning wand is in contact with the surface (col. 3,
lines 26-28) and, thus, the wand is always in focus when
contact is made with the surface.
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