Ex parte CHESKO et al.

Board of Patent Appeals and Interferences

Aug 31, 1998

08218000 (B.P.A.I. Aug. 31, 1998)

Application for patent filed March 25, 1994. 1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered
today (1) was not written for publication in a law
journal and (2) is not binding precedent of the
Board.
Paper No. 15
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte JAMES F. CHESKO Sr., YIFAN GUO, BONGTAE HAN
and CHUN K. LIM
____________
Appeal No. 96-1850
Application No. 08/218,0001
____________
ON BRIEF
____________
Before HAIRSTON, BARRETT and TORCZON, Administrative Patent
Judges.
HAIRSTON, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of claims 1
through 9.
The disclosed invention relates to a box for a portable
moire interferometer.
Appeal No. 96-1850
Application No. 08/218,000
2
Claim 1 is illustrative of the claimed invention, and it
reads as follows:
1. A portable moire interferometer, comprising:
a box having first, second, third, fourth, fifth and
sixth walls, said first and second walls, said third and
fourth walls, and said fifth and sixth walls, respectively,
being substantially parallel to one another;
a reference diffraction grating which is contained within
the interior of said box and substantially rigidly affixed to
said first wall;
at least first, second and third apertures in said second
wall, facing said reference diffraction grating, said third
aperture being positioned between said first and second
apertures;
first means, extending through a hole in a wall of said
box, for guiding a beam of coherent light from the exterior of
said box to the interior of said box;
second means, located within the interior of said box,
for directing said beam of coherent light toward said
reference diffraction grating, to thereby produce at least
first and second diffracted, coherent beams of light; and
third means, also located within the interior of said
box, for directing said first and second diffracted, coherent
beams of light toward, respectively, said first and second
apertures in said second wall, said third means being
adjustable from the exterior of said box so that the
directions of said first and second diffracted, coherent beams
of light may be adjusted from the exterior of said box.
Appeal No. 96-1850
Application No. 08/218,000
The citation for this publication was reproduced from2
appellants’ disclosure (specification, page 5).
3
The references relied on by the examiner are:
Perkins et al. (Perkins) 4,726,657 Feb.
23, 1988
Mollenhauer et al. (Mollenhauer), “A Compact, Economical, and
Versatile Moire Interferometer,” Proceedings of the 1993 SEM
Spring Conference on Experimental Mechanics, Bethel,
Connecticut, pp. 954 through 963.2
Claims 1 through 9 stand rejected under 35 U.S.C. § 103
as being unpatentable over Mollenhauer in view of Perkins.
Reference is made to the brief and the answer for the
respective positions of the appellants and the examiner.
OPINION
We have carefully considered the entire record before us,
and we will reverse the obviousness rejection of claims 1
through 9.
Mollenhauer discloses a moire interferometer mounted on
an aluminum ring (Figure 2). Appellants explain
(specification, page 5) that a problem with such a moire
interferometer is that all of the optical elements are exposed
to the surrounding air, and that the moire interferometer is
Appeal No. 96-1850
Application No. 08/218,000
4
“subject to undesirable changes in refractive index associated
with air currents.”
The examiner cites Peterson to show that it is known to
mount optical components in a box (column 2, lines 26 through
28). Based upon the teachings of Peterson, the examiner
concludes that it would have been obvious to one of ordinary
skill in the art to enclose the moire interferometer disclosed
by Mollenhauer in a box because “it is quite beneficial to
enclose interferometer structures in order to protect the
optical elements from external stresses such as temperature”
(Answer, page 3). We agree.
With respect to the claimed apertures in the box, the
examiner indicates (Answer, page 3) that Perkins “teaches
placing an interferometer within a rectangular enclosure
having several apertures (130, 145, 146, 147, 148) for
permitting light to enter and exit the enclosure.” According
to the examiner (Answer, pages 3 and 4), “[i]t would therefore
have been obvious to provide apertures in the enclosure wall,
adjacent to the specimen grating, to permit the light beams to
exit the box through separate apertures, strike the specimen
grating, and return into the box through a center aperture.”
Appeal No. 96-1850
Application No. 08/218,000
5
We agree with the examiner that the light has to exit the box
to strike the specimen grating. We do not, however, agree
with the examiner that the exit point in the box for the light
has to be in the configuration claimed by appellants. The
aperture teachings of Perkins are of no help because the
apertures 144 and 145 in the outer wall of the box (Figure 7)
are located there to support shafts that extend into the box
(column 6, lines 43 through 48). The opposite wall of the box
has only one aperture 130 for entry of radiation 100 (column
6, lines 22 through 26) (Brief, page 6). The only teaching of
record that shows the claimed configuration of the apertures
is appellants’ disclosed and claimed invention, and it is not
available to the examiner in an obviousness determination.
In summary, the 35 U.S.C. § 103 rejection of claims 1
through 9 is reversed because the applied references neither
teach nor would they have suggested to one of ordinary skill
in the art the claimed configuration of the apertures in the
box that houses the portable moire interferometer.
In light of the reversal of the obviousness rejection, we
will not offer any comments on appellants’ evidence of
commercial success in the affidavit attached to the brief.
Appeal No. 96-1850
Application No. 08/218,000
6
DECISION
The decision of the examiner rejecting claims 1 through 9
under 35 U.S.C. § 103 is reversed.
REVERSED
KENNETH W. HAIRSTON )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
LEE E. BARRETT ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
RICHARD TORCZON )
Administrative Patent Judge )
Appeal No. 96-1850
Application No. 08/218,000
7
Bernard Tiegerman
IBM Corporation, Intellectual Property
Law Department, N50/040-4
Endicott, NY 13760
KWH/jrg
JENINE GILLIS
Appeal No. 96-1850
Serial No.
08/218,000
Judge HAIRSTON

Judge BARRETT
Judge TORCZON
Received: 26 Aug 98
Typed: 26 Aug 98
DECISION: REVERSED
Send Reference(s): Yes No
or Translation(s)
Panel Change: Yes No
3-Person Conf. Yes No
Remanded: Yes No
Brief or Heard
Group Art Unit: 2505
Index Sheet-2901 Rejection(s): ___________
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