Appeal No. 2001-1956
Application 08/923,424
by the appellant [sic] is not [a] critical feature of the
invention...."
We disagree with the examiner's position. The claim recites
a particular and specific manner in which the refringent optical
members each consisting of an isotropic prism and a refringent
prism are physically arranged with respect to the condenser and
the objective lenses in the differential microscope. To
arbitrarily allege that such an arrangement would have been
obvious without the support of any factual evidence is a mere
speculation on the part of the examiner.
The recited central thickness of the birefringent optical
member between 0.4 and 0.6 mm, (which is not so recited in the
other independent claim 14), is also not shown by the combination
of the admitted prior art and DeVeer, even if such a combination
were appropriate.
Therefore, we do not sustain the rejections based on the
primary combination of the admitted prior art and DeVeer.
Since Bass and/or Hayashi do not cure the deficiency of this
basic combination, we also do not sustain the rejections based on
the basic combination as modified by Bass with respect to claims
3, 4, 16, 29 and 30; or as modified by Hayashi with respect to
claims 7, 8, 20, 31, and 32.
7
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