Appeal No. 2003-1483
Application No. 09/591,661
by tilting the tertiary mirror, as suggested by the Examiner
(brief, page 8). Appellants further point out that Cook teaches
that the tertiary mirrors are fixed (col. 5, lines 18-20) and
generate a plurality of images because their focal lengths vary
(brief, page 9). Appellants further assert that the tilting of
the tertiary mirror would be contrary to the reference’s teaching
related to the different fields of view reflecting off of the
tertiary mirrors resulting in focal planes equally distanced from
the optical axis of the primary and the secondary mirrors (brief,
pages 10-13 and reply brief, pages 8-11).
In response to Appellants’ arguments, the Examiner asserts
that by using Cook’s decentering or tilting of the tertiary
mirror, the field of view may be offset to correct astigmatism
(answer, page 7). The Examiner further reasons that since the
specification attributes correction of astigmatism to the tilting
of the tertiary mirror, the tertiary mirror arrangement of Cook
also results in such a correction (answer, page 8).
The initial burden of establishing reasons for
unpatentability rests on the Examiner. In re Oetiker, 977 F.2d
1443, 1446, 24 USPQ2d 1443, 1445 (Fed. Cir. 1992). The Examiner
is expected to make the factual determination supported by
teaching in a prior art reference or shown to be common knowledge
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