Appeal 2007-0953
Application 10/607,466
This case, therefore, turns on a relatively narrow issue:
Notwithstanding their respective labels, can at least some of the “input
channel waveguides” 160 in Fig. 3A somehow function as “output
waveguides” as claimed? Likewise, can at least some of the “output channel
waveguides” 200 somehow function as “input waveguides” as claimed?
If we answer these questions in the affirmative, we must affirm the
Examiner’s rejection since we find that McGreer otherwise discloses all of
the claimed limitations. However, we are constrained to find that the record
before us simply does not reasonably support such an interpretation.
We note that the preamble of claim 10 recites the functionality of the
input and output waveguides respectively. That is, the input waveguide is
“for inputting a multiplexed optical signal to the grating” and the output
waveguide is “for outputting single-channel optical signals demultiplexed by
the grating.” While such limitations can be considered mere intended use of
the respective waveguide structures, to anticipate the claim, McGreer’s
waveguides 160 and 200 must nevertheless be capable of performing both of
the recited functions. See Schreiber, 128 F.3d at 1477-78, 44 USPQ2d at
1431-32.
McGreer does state that the disclosed apparatus can be used to
multiplex or demultiplex signals (McGreer, col. 9, ll. 9-10). But McGreer
does not state that the “input side” or the “output side” can be either side of
the substrate. Rather, the most reasonable reading of McGreer is that a
multiplexed signal can be inputted to the “input side” and demultiplexed
single-channel optical signals can be obtained on the “output side.”
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