Ex parte ANDERSON et al. - Page 8

              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                   
                     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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