Appeal No. 2000-1243
Application 08/826,112
Translation at 5, last para.
While Horikago's antimony sulfide layer is partially
reflective in the sense that it reflects one wavelength (82)
while transmitting others (84 and 86), it is not disclosed as
being partially reflective and partially transmissive with
respect to the same wavelength, as is required of the semi-
transparent film (3) in Nagashima's recording medium, wherein the
same wavelength is used to read the semi-transparent film and the
reflective film (6). The examiner, apparently recognizing this
deficiency, argues that
[k]nowledge of this material [antimony sulfide] was
clearly known by Horikago et al as the index of
refraction would have been required information in the
construction of the disclosed optical disc, as the
index of refraction would play a critical role in the
construction of an optical disc wherein more than one
layer would be read. Therefore Horikago et al. teach a
partially reflective layer in a dual-layer prerecorded
disc with antimony sulfide.
Answer at 11. We agree with Appellants that the examiner’s
argument fails for two reasons. The first is that it cannot be
assumed in the absence of supporting evidence that a person
skilled in the art at the time the invention was made would have
known the values of the real and imaginary components of the
index of refraction of antimony sulfide. See In re Ahlert, 424
F.2d 1088, 1091, 165 USPQ 673, 677 (CCPA 1970):
11
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