Appeal No. 2001-2065
Application 09/124,871
of the sensing areas since both Allen '333 and the instant
application utilize exactly the same sensors the only
variation being the number and placement of the sensors"
(EA6-7). Subsequently, the Examiner states that "the specific
error problems that exist in the prior art have been overcome
by Allen '333 where it is repeatedly disclosed that the depth
of the missile or dart is not relevant to whether the missile
or dart can be sensed" (EA9).
Appellant argues that the cited portions of Allen at EA6
are irrelevant either to Appellant's arguments or the present
invention (RBr1-3). It is argued that the present application
specifically recognizes the existence of errors in Allen and
improves upon the Allen system to eliminate those errors and
that the Examiner has not shown otherwise (RBr5).
We find no factual basis for the Examiner to question
Appellant's position that he discovered a previously unknown
measurement problem with the system of Allen related to the
depth of the missile and the size of sensing areas that was
not appreciated by Allen or to question whether those problems
actually exist in Allen. One would not expect Allen to
recognize or discuss an unknown problem.
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