Appeal No. 1997-1899
Application No. 08/407,145
answer (Paper No. 7, mailed Dec. 24, 1996) and the supplemental examiner's answer
(Paper No. 9, mailed Feb. 5, 1997) for the examiner's reasoning in support of the
rejections, and to the appellant's brief (Paper No. 6, filed Dec. 6, 1996) and reply brief
(Paper No.8, filed Jan. 10, 1997) for the appellant's arguments thereagainst.
OPINION
In reaching our decision in this appeal, we have given careful consideration to the
appellant's specification and claims, to the applied prior art references, and to the
respective positions articulated by the appellant and the examiner. As a consequence of
our review, we make the determinations which follow.
As pointed out by our reviewing court, we must first determine the scope of the
claim. "[T]he name of the game is the claim." In re Hiniker Co., 150 F.3d 1362, 1369, 47
USPQ2d 1523, 1529 (Fed. Cir. 1998). We find that the examiner has not provided a
teaching or convincing line of reasoning why one skilled in the art would have desired to
use a wavelength-tunable filter in the system of Burbo. Burbo states:
This adjustable ring is coupled to the polarizer plate 21 associated with each
housing and hence, permits the operator or user to rotate the plate and
hence, the polarizer element 21 with respect to the elements 20 and 22.
It is important, as above indicated, to note that the purpose of the
blue-green filter 24 is to compensate for the deficiencies inherent in the
infrared transmission characteristics of the polaroid materials employed in
plates 20, 21 and 22.
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