Appeal No. 2001-1893
Application No. 09/195,297
column 11, line 38 describes the circuitry of interest, including a dimming interface
circuit (Fig. 6C). A user-provided controller is connected between terminals GREY and
VIOLET for generation of the signal transmitted from LED U5 to phototransistor U5 (Fig.
6A) in a symmetry control circuit. However, as admitted by the examiner, the reference
does not detail a ramped operation as set forth in claim 1.
The assertion of “obvious design choice” -- that is, the view that the artisan would
have found it obvious to change the duty ratio incrementally over a plurality of cycles --
also appears to be based on speculation, absent the provision of supporting evidence
(such as an additional, teaching reference). A rejection based on the assertion, without
evidence in support thereof, could not stand upon further appeal. See In re Zurko, 258
F.3d 1379, 1386, 59 USPQ2d 1693, 1697 (Fed. Cir. 2001) (in a determination of
unpatentability “the Board must point to some concrete evidence in the record in
support of...[the]...findings”).
We thus conclude that prima facie unpatentability has not been shown for claim
1, nor for claims 2 through 4 depending therefrom. We do not sustain the rejection of
claims 1-4 under 35 U.S.C. § 103 as being unpatentable over Moisin.
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