Appeal 2007-1059
Application 10/408,598
§ 102(b). Particularly, does Urino’s disclosure of a monitoring waveguide
for monitoring wavelengths in an optical signal or Urino’s disclosure of a
photo-detector teach Appellants’ power monitor?
FINDINGS OF FACT
The following findings of fact are supported by a preponderance
of the evidence.
The Invention
1. Appellants invented an arrayed waveguide based optical system (10)
that receives a wavelength division multiplexed signal (12) having
wavelengths 1 through N. (Specification 2.)
2. As depicted in Figure 1, an input optical beam of the multiplexed
signal (12) passes through an optical de-multiplexer, which comprises a star
coupler (14a) adjoining an arrayed waveguide region (15) juxtaposing
another star coupler (14b). Various wavelengths are coupled to different
output waveguides (16, 18) due to constructive and destructive interference
in the region 15. Waveguide 16 operates on one diffraction order while
Piasecki 745 F.2d 1468, 1472, 223 USPQ 785, 788. When that burden is
met, the burden then shifts to the applicant to rebut. Id.; see also In re
Harris, 409 F.3d 1339, 1343-44, 74 USPQ2d 1951, 1954-55 (Fed. Cir.
2005) (finding rebuttal evidence unpersuasive). If the applicant produces
rebuttal evidence of adequate weight, the prima facie case of unpatentability
is dissipated. In re Piasecki, 745 F.2d at 1472, 223 USPQ at 788.
Thereafter, patentability is determined in view of the entire record. Id.
However, on appeal to the Board it is an appellant's burden to establish that
the Examiner did not sustain the necessary burden and to show that the
Examiner erred -- on appeal we will not start with a presumption that the
Examiner is wrong.
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