Appeal No. 2004-0288
Application No. 09/173,747
dimensions of the coil to be less than 25 and 20 microns in two
different directions and a beam diameter of 1-3 mm, respectively.
However, absent any evidence or reasoning to show a connection
between the two references, we are unconvinced that comparing the
beam diameter of Lee and the coil opening of McDaniel
conclusively establishes the claimed relationship of the incident
and passing beams diameters with respect to the coil opening
dimension.
The Examiner then points to the discussion of the refraction
index of SIL (Solid Immersion Lens) in Knight and how it affects
the numerical aperture of an optical system to support the
combination of the references (answer, page 10). Again, we do
not agree with the Examiner that Knight’s discussion of using
SIL, which achieves a smaller spot size for the focused beam,
teaches or suggest the claimed relationship based on the specific
dimensions taught by McDaniel and Lee. While selecting such
particular type of lens may affect the size of the focused beam,
concluding that the claimed relationship between the coil opening
and the incident and the passing light would also be obtained
require us to rely on considerable speculation instead of a
factual basis. “Where the legal conclusion [of obviousness] is
not supported by the facts it cannot stand.” In re Warner, 379
F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA 1967).
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