Appeal No. 2003-0261
Application No. 09/126,203
the fifth embodiment of Fontenot, shown in figure 7 and described on page 22, a prism
is used to “separate visible light energy from infrared light energy”. Thus, we find no
support in Fontenot for the examiner’s assertion that the color pass filters pass both
visible and infrared light. We do note that Fontenot’s description of several of the
embodiments specifically state that only visible light is passed. As such, we find that
Fontenot does not teach that there either an output, or a filtered transmission, or a
signal which includes a component of visible and infrared light energies.
On page 7 of the answer, the examiner rebuts appellants’ arguments that Fontenot’s
color filters do not pass infrared light, by stating, “Yes, Fontenot et al. is wrong when he
describes that each LCD filter ‘passes only the color for which it is designed’ when
energized.” In the paragraph bridging pages 7 and 8 of the answer the examiner
supports this assertion, rationalizing that for the LCD shutter to block infrared would
require an additional filter which would destroy the function of the device.
This assertion by the examiner is unfounded by the evidence of record.
Fontenot et al. states on page 9 line 21 that a Varispec ™ LCD filter can be used.
Though the details of the Varispec ™ filter are not in evidence before us, on page 8 of
the brief appellants admit that the Varispec ™ filter does not block infrared without
modification. Appellants argue on page 8 of the brief and page 4 of the reply brief that
the filter may easily be modified.
The examiner’s statement bridging pages 7 and 8 of the answer does not
dispute that a modification can be made but rather states that the modification would
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