Appeal No. 2005-1024 Page 7
Application No. 10/156,291
alone. In re McKenna, 203 F.2d 717, 720, 97 USPQ 348, 350-51 (CCPA 1953). In
sum, while the points raised by the examiner may diminish to some degree the
probative value of the Zou declaration and thus the weight accorded thereto, it must be
considered in light of all the evidence of record.
The examiner, on the other hand, has not come forward with any evidence to
counter the Zou declaration. The examiner asserts on page 7 of the answer that “a
greatly polished machined lens would be virtually identical if not identical to a molded
lens” but has not substantiated this assertion with any evidence or pointed to any
disclosure in Koeniger which indicates that the Koeniger lens even is “greatly polished.”
In light of the above, it is apparent that the weight of the evidence in this case is
that the Koeniger lens is not the same as that recited in claims 26-28. We thus cannot
sustain the examiner’s rejection of claims 26-28 as being anticipated by Koeniger. As
the examiner has not offered any explanation or evidence as to why the differences
between the Koeniger lens and the lens of claims 26-28 would have been obvious, it
follows that we also cannot sustain the rejection of claims 26-28 as being unpatentable
over Koeniger.
We turn our attention next to the rejection of claim 29 as being anticipated by or,
in the alternative, as unpatentable over Koeniger. Claim 29 recites an aspheric lens
which is both soft and internally dry. While the Koeniger lens is internally dry prior to
insertion into the posterior capsule of the posterior chamber of the eye, it is also
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