Appeal No. 95-4470
Application No. 08/223,190
did not appear in the claim, we would agree with the examiner and
we might understand how the examiner might have misconstrued the
claim language since claim 1 appearing in the appendix to the
principal brief recited “polarization” but not “polarization
rotation.” However, the term “polarization rotation” was clearly
inadvertently omitted from the claim appearing in the appendix as
this term has formed part of the language of claim 1 since the
filing of the application. Since the examiner’s rejection of
claim 1, and claims depending thereon, is bottomed on no
limitation of “polarization rotation” appearing in the claims, we
cannot understand why the examiner has persisted in this
rejection even after this inadvertent omission of the claim
language was explained in the reply brief.
Since the examiner has ignored, or, more accurately, has
failed to give any weight to a claim limitation, especially a
limitation so clearly tied to a critical aspect of appellants’
invention, the examiner’s rejection of claims 1 through 3 and 10
under 35 U.S.C. 103 must fail for a lack of a prima facie showing
of obviousness of the claimed subject matter.
Even though we could agree that porro prisms are well known
in the art and that “polarization rotation” is a well known term
of art, the examiner has failed to present a convincing line of
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