Appeal No. 1997-1414
Application 08/406,706
claimed composition or device, or carry out the claimed process; and (2) whether the prior
art would also have revealed that in so making or carrying out, those of ordinary skill would
have a reasonable expectation of success. In re Vaeck, 947 F.2d 488, 493, 20 USPQ2d
1438, 1442 (Fed. Cir. 1991). Both the suggestion and reasonable expectation of success
must be found in the prior art, not in appellant’s disclosure. Id.
Each of Kretchman, Saunders, Marui, and Kadowaki describe spectrally sensitized
silver halide gelatin emulsions containing an anthraquinone compound. Even though the
examiner recognizes that these references do not teach the use of an infrared sensitizing
dye to sensitize the silver halide, he argues that the use of a infrared sensitizing dye in
these emulsions would have been obvious to one of ordinary skill in this art because silver
halide emulsions sensitized to the visible and infrared regions have been conventionally
known in the art and thus one of ordinary skill in the art would have selected the
appropriate sensitizing dye based on the choice of light used to expose the silver halide
emulsion. (Answer, page 5).
On this record, the examiner has failed to provide some objective teaching in either
the prior art, or knowledge generally available to one of ordinary skill in the art, that would
lead a person of ordinary skill in the photographic art to use an infrared sensitizing dye for
the spectral sensitizing dyes in the anthraquinone containing silver halide emulsions of
Kretchman, Saunders, Marui, or Kadowaki . A simple statement that visible and infrared
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