Appeal 2007-0274
Application 10/011,629
THE ISSUES
The issues raised in this appeal are:
Is the Barone reference non-analogous art?
Do the Appellants' secondary considerations relating to long-felt need
and commercial success outweigh the Examiner's reference evidence of
obviousness?
THE NON-ANALOGOUS ART ISSUE
The Examiner and Appellants understand that the test for determining
analogous versus non-analogous prior art is whether the art is from the
inventor's field of endeavor regardless of the problem addressed and, if not,
whether the art is reasonably pertinent to the particular problem with which
the inventor is involved. In re Clay, 966 F.2d 656, 659, 23 USPQ2d 1058,
1060 (Fed. Cir. 1992). While agreeing that Barone is not in the field of
endeavor under consideration (i.e., reticles adapted for use in scopes), the
Examiner and Appellants disagree as to whether this reference is reasonably
pertinent to the particular problem with which the inventors are involved.
According to Appellants, this problem relates to increasing the visibility of
reticles used in scopes (Replacement Br. 18), and Barone is not reasonably
pertinent to such a problem because the reference involves photoluminescent
material on the sight of a pistol (id.; Barone, col. 2, ll. 25-34).
The problem addressed by Appellants is defined in the Specification
as relating to aiming difficulties when using a scope reticle as a sighting
marker in low-light conditions (Specification 1-3). The use of
photoluminescent material on the sighting markers of Barone's pistol is
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