Appeal No. 1999-0869
Application 08/644,608
burden to provide evidence or convincing reasons why a laser
measurement system was not enabling. The Examiner has merely
questioned how the measurement is done, and stated that how
the measurement is done is not known to the Examiner rather
than by one skilled in the art, which we feel does not satisfy
the Examiner's burden. Nevertheless, Appellants provided the
Examiner a copy and translation of "Dynamic Autofocus Sensor
for Measuring Three-Dimensional Microstructures,"
tm-Technishes Messen 59 (1992) 1, R. Oldenbourg Publishing
House, pp. 3-9 and Fig. 1. This reference proves that laser
position measurement systems were known in the prior art.
Manifestly, any laser measurement system could be used since
this is not Appellants' invention. This is not a case where
the elements were not known to exist in the prior art. Cf.
In re Buchner, 929 F.2d 660, 18 USPQ2d 1331 (Fed. Cir. 1991)
(no evidence that phase comparator having four inputs and one
output and divider having two inputs and one output were known
in the prior art). Accordingly, the Examiner erred in
concluding that laser measurement systems were not
conventional.
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