Appeal 2006-2416
Application 09/988,660
Appellants’ remarks at pages 9 and 10 of the principal Brief on appeal
relating to unexpected results are misplaced. The Examiner addresses well
these arguments at pages 8 and 9 of the Answer, particularly the noted
references at the bottom of page 8 to specific MPEP sections relating to
considerations of evidence using an unexpected results line of reasoning.
The relied-upon paragraphs [0035] to [0037] in the Specification as filed
only set forth noted advantages alleged to pertain to the disclosed invention
set forth and no evidence of unexpected results. It may be well observed as
well that the results may have been clearly expected to an artisan since the
claimed properties that are argued of the holographic optical element are
merely those which Amos and Ben-Menachem recognized were known in
the art as well.
When we turn to the responsive arguments in the Reply Brief, they are
misplaced. To the extent Appellants appear to argue the infrared detector at
page 2 of this Reply Brief, the arguments are without merit since they have
not been presented earlier in the principal Brief on appeal and the
Examiner’s responsive arguments have not given rise to this responsive
argument in the Reply Brief. It goes without saying anyway that Appellants’
Specification page 7 indicates that a known prior art detector by patent
number was identified as the disclosed basis of the detector presently
claimed in independent claim 4 on appeal.
The discrimination and propagation capability at page 2 of the Reply
Brief has not been previously argued in the principal Brief as well and not
the result of any arguments presented by the Examiner in the responsive
argument portion of the Answer. Moreover and most significantly,
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