Appeal 2006-2959
Application 10/066,277
Independent claim 1 is illustrative and representative of the
Appellants’ invention. It reads as follows:
1. A system operable to substantially automatically perform an
evaluation of a sample of a material according to an established standard,
wherein the system comprises:
a microscope operable to magnify the sample;
a light source operable to illuminate the sample, wherein the
illumination is provided at a grazing angle so as to enhance a contrast
between surface features of the sample;
a stage associated with the microscope and operable to move and
position the sample under the microscope for viewing;
an image capturing mechanism operable to capture an image of the
sample through the microscope; and
a computing device operable to control magnification by the
microscope, control illumination by the light source, receive images from
the image capturing device, control movement of the stage, and store and
execute a computer program operable to substantially automatically
conduct an analysis of the image to identify surface features of the
sample and determine characteristics of the sample therefrom, and
to generate a report setting forth a result of the analysis.
Appellants contend that claims 1 through 4, 6 through 8, 23 through
26 and 28 are not anticipated by Esrig.1 Particularly, Appellants contend
that Esrig does not fairly teach or suggest automatically analyzing an image
to identify surface features of a sample under test in order to determine the
1 This decision considers only those arguments that Appellants
submitted in the Appeal and Reply Briefs. Arguments that Appellants could
have made but chose not to make in the Briefs are deemed to have been
waived. See 37 § C.F.R. 41.37(c)(1) (vii)(eff. Sept. 13, 2004). See also In
re Watts, 354 F.3d 1362, 1368, 69 USPQ2d 1453, 1458 (Fed. Cir. 2004).
3
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