Appeal No. 1998-0160
Application No. 08/529,330
as suggesting the claimed positioning of the “night reticle display,” and in particular to
elements 35 and 36 (Figure 2) “in a similar optical system.” (See Final Rejection, page 4.)
However, Traeger, in particular at column 3, lines 1 through 9 and column 4, lines 13
through 16, appears to teach that “target mark” 35 is so positioned so as to be compatible
with Traeger’s disclosed objective turret 101, which switches between “strongly
magnifying” and “weakly magnifying” objectives. Schmidt ‘757, on the other hand, has a
kind of “turret” (comprised of revolving plate 16; Figure 1), but also discloses an
operational night reticle that is not positioned as set forth in appellants’ claims. Whether
there was suggestion in the prior art to modify the apparatus of Schmidt ‘757 to add
selective magnification, and perhaps as a consequence also a suggestion to provide a
night reticle in a position different from that disclosed by Schmidt ‘757, would be mere
speculation on our part. The rejection as stated does not contemplate those particular
modifications.
Since it is unclear to us how the applied combination might suggest the subject
matter of Claim 1, which includes the positioning of the “night reticle display” between the
image converter and the eyepiece lens assembly, and the examiner has not explained why
the references are believed to render the claimed subject matter obvious, we cannot
sustain the rejection of Claim 1.
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