Appeal No. 95-4470
Application No. 08/223,190
reasoning as to why it would have been obvious, in view of the
art cited, to have constructed a monolithic optical element
providing for total internal reflection of incident light wherein
the body of the optical element is in the shape of a right-angle
porro prism in order to provide for retroreflection in one plane
and polarization rotation of the incident light rays. The
claimed properties have not been shown to be inherent in any
porro prism.
We note, further, that the examiner appears to rely, to some
extent, on Reeder for a suggestion of the “polarization rotation”
feature. However, where a reference is relied on to support a
rejection, whether or not in a minor capacity, there would appear
to be no excuse for not positively including the reference in the
statement of the rejection. In re Hoch, 428 F.2d 1341, 1342 n.3,
166 USPQ 406, 407 n.3 (CCPA 1970). Reeder forms no part of the
examiner’s statement of the rejection and, accordingly, we have
not considered this reference.
We now turn to the new ground of rejection wherein the
examiner rejects claims 17 through 19 and 22 under 35 U.S.C. 103
over APA, Sumida and Simmons.
To whatever extent the examiner might have mistakenly
believed that the “polarization rotation” limitation did not
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