Appeal No. 1998-0160
Application No. 08/529,330
1992). The lack of findings regarding motivation to combine the references skirts the
proper inquiry with respect to the claimed “subject matter as a whole.” However, we make
the following determinations in view of the examiner’s findings, appellants’ arguments, and
the evidence that is before us.
Claims 1-4, 6, 7, 9, 14, 15
Schmidt ‘757 discloses a combined daytime and nighttime viewing device having
dual optical systems which share a common beam path. In arguments in defense of Claim
1, appellants contend:
There is a mention of tilted components for telescopes in the Buchroeder
article...but this article makes no mention of the use of these elements in an
infrared optical system nor any suggestion for the incorporation of such a
system in the compound optics having an opening passing through the tilted
lens system for mounting the daylight optics between the nighttime optic [sic]
nor the use of such a system in a rangefinder system.
(Brief, page 12.)
Although the argument is clearly not commensurate with the scope of Claim 1
(which requires that the night light corrector lens is “adjacent” the daylight objective lens,
and makes no reference to a “rangefinder system”), we take the thrust of the argument to
be that the combined teachings of Schmidt ‘757 and Buchroeder would not have
suggested that the “night light corrector lens” 11 of Schmidt ‘757 should be modified such
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