Appeal No. 96-3813
Application No. 08/248,937
dielectric waveguides of roughly square cross
section would have been recognized by one of
ordinary skill in the art as a mere change in shape.
Applicants have failed to disclose any significance
or criticality with regards to this limitation in
the specification as originally filed. Thus, this
limitation appears to be an obvious matter of design
choice.
Although a change in shape may constitute an obvious
matter of design choice in certain circumstances, a variation
in shape is not always a mere design choice. In this case,
appellants have used a rectangular semiconductor waveguide
with a square core dielectric waveguide for better contact
between the two waveguides (see page 2 of the specification,
wherein appellants refer to the circular shape of the
waveguide as part of the problem being solved). Furthermore,
optical waveguides are conventionally round, and it would have
been counterintuitive to
one of ordinary skill in the art to select anything other than
a circular shape for the core of the waveguide in the absence
of a specific teaching to do so. Since the examiner has
provided no evidence to support his allegation that the shape
of the dielectric waveguide is merely a design choice, and
since the shape is recited in all of the claims, we find that
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