Appeal No. 96-3109
Application No. 08/445,121
60 are not enabled by the specification as required under 35
U.S.C.
§ 112, first paragraph.
The Examiner asserts that:
The specification fails to teach suitable
wavelengths in the infrared for causing fluorescence
of hydrocarbons in a borehole. On page 7, of the
specification is disclosure for using an LED source
producing light of about 450nm, a laser diode
producing light of about 674nm, and a tungsten
halogen lamp with a bandpass filter of 400-500nm.
None of these wavelengths are in the infrared.
(Answer-page 3.)
Additionally the Examiner states:
The near infrared wavelength range is very broad,
and while one could conceivably use hundreds of
laser diodes of differing wavelengths to determine a
suitable wavelength to induce hydrocarbon
fluorescence, it is unlikely that an experimenter
would conclude that undue experimentation was not
involved. Appellants do not even give a “ball park”
range that would at least direct the practitioner to
the most appropriate part of the near infrared
spectrum. They do suggest filtering light from a
tungsten halogen lamp, but the only specific filter
that is disclosed is one that eliminates the
infrared component from the source light. (Answer-
page 6.)
Appellants argue:
The Examiner’s position is contrary to that of the
court in In re Gaffe. To summarize the general case
here, the following general points are to be borne
in mind:
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