Appeal No. 96-3592
Application 08/381,335
OPINION
We reverse the rejection of claims 18 through 30 under 35 U.S.C. § 103.
Each independent claim 18, 23, and 30 on appeal in some manner recites that "the
SPSLS layer" includes "a plurality of overlaying single crystal thickness layers." The
examiner appears not to have come to grips with this limitation until the supplemental
answer. The single crystal thickness feature is consistent with the manner in which the
specification discloses the claimed and shown invention in Figures 1 and 4. Our study of
the Jeon publication relied upon alone by the examiner under 35 U.S.C. § 103 leads us to
conclude that there is no discussion per se that the multilayer heterostructure of the blue
and green diode lasers in this reference are comprised of the claimed "a plurality of
overlaying single crystal thickness layers." The examiner does not argue any modification
of the reference nor do we discern any teaching or suggestion to do so from the artisan’s
perspective to arrive at the noted feature of each independent claim on appeal. As such,
we must reverse the rejection of each independent claim 18, 23, and 30 on appeal and
therefore each respective dependent claim.2
2It appears to us that an objection may lie as to the inclusion of dependent claim
22/18 among the claims on appeal under 37 CFR § 1.75(b) inasmuch as the allowance of
claim 22/18 would present substantially the same subject matter as independent claim 23
on appeal thus presenting substantially duplicate claims.
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