Appeal No. 2001-1956
Application 08/923,424
We agree with appellants' position. We find that DeVeer
does teach the forming of a birefringent optical member in Figure
11 by cementing an isotropic prism with a refringent member
prism. However, we do not find any teaching of using such a
prism in place of a conventional prism. We note that in column
2, lines 30-35 DeVeer does mention that there is a significant
reduction in cost from the "elimination of matching pairs of
complementary wedges," which alludes to the formation of a
birefringent optical member having an isotropic member and the
reinfringent member. However, there is no suggestion of using
such a prism in place of a conventional prism in an differential
interference microscopic arrangement recited by appellants.
Appellants further argue (brief at pages 13 and 14) that the
recited orientation of the birefringent optical members is not
shown by the combination even if the combination was taught by
the references. The examiner responds (answer at page 6) that
"such an arrangement is an obvious matter within the level of one
skilled in the art. One skilled in the art can easily use the
prism with isotropic or glass material neat (sic, near) the
object to be eliminated. Furthermore, the arrangement of the
birefringent elements with the differential materials as argued
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