Appeal No. 95-0065
Application 07/568,348
about 70% at around 1.6 µm, falling to zero at 1.9 µm. Here
again, as with the Wolbarsht reference, it is not apparent to
us what suggestion there would be in Horn for one of ordinary
skill in the art to ignore Horn's teaching that the corneal
transmission should be high and use wavelengths of 1.4 to 2.2
µm, none of which, as shown in Horn's Fig. 3a, has a corneal
transmittance as high as the transmittance for the 1.20 to
1.29 µm range recommended by Horn.
On page 15 of the answer, the examiner argues that
appellant has simply discovered an optimum value for a known
process, citing In re Aller, 220 F.2d 454, 105 USPQ 233 (CCPA
1955). We do not consider this argument to be well taken, for
in the present case appellant did not discover the optimum
wavelength from a broad range of wavelengths taught by the
prior art, but rather used wavelengths which are outside the
ranges
suggested by Wolbarsht or Horn, and in fact, as discussed
above, might be considered to be contrary to the suggestions
of the references. Thus, unlike Aller, appellant did not
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