Ex parte WAGNER - Page 3

              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.                                


                     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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