Ex parte ANDERSON et al. - Page 5

              Appeal No. 1998-0160                                                                                      
              Application No. 08/529,330                                                                                

              1992).  The lack of findings regarding motivation to combine the references skirts the                    
              proper inquiry with respect to the claimed “subject matter as a whole.”  However, we make                 
              the following determinations in view of the examiner’s findings, appellants’ arguments, and               
              the evidence that is before us.                                                                           

              Claims 1-4, 6, 7, 9, 14, 15                                                                               
                     Schmidt ‘757 discloses a combined daytime and nighttime viewing device having                      
              dual optical systems which share a common beam path.  In arguments in defense of Claim                    
              1, appellants contend:                                                                                    
                     There is a mention of tilted components for telescopes in the Buchroeder                           
                     article...but this article makes no mention of the use of these elements in an                     
                     infrared optical system nor any suggestion for the incorporation of such a                         
                     system in the compound optics having an opening passing through the tilted                         
                     lens system for mounting the daylight optics between the nighttime optic [sic]                     
                     nor the use of such a system in a rangefinder system.                                              
              (Brief, page 12.)                                                                                         
                     Although the argument is clearly not commensurate with the scope of Claim 1                        
              (which requires that the night light corrector lens is “adjacent” the daylight objective lens,            
              and makes no reference to a “rangefinder system”), we take the thrust of the argument to                  
              be that the combined teachings of Schmidt ‘757 and Buchroeder would not have                              
              suggested that the “night light corrector lens” 11 of Schmidt ‘757 should be modified such                

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