Appeal No. 1998-0180
Application No. 08/471,309
Based on the examiner’s stated conclusion of what "would have been obvious," we assume
there is a rejection for obviousness based upon an underlying factual finding that the sole difference
between the subject matter of the claims and the reference is the “dispersion” relationship.5
Appellant’s response to the obviousness rejection applied to Claim 1, on pages 17 through 27
of the Brief, appears based on the view that Liu discloses only a circular waveguide within a coaxial
waveguide. However, as we set forth supra in our review of the rejection for anticipation, we are
persuaded that the reference also discloses a coaxial waveguide within a coaxial waveguide. Claim 1
requires that two coaxial waveguides have substantially the same dispersion. The claim does not
require that every waveguide in an antenna have substantially the same dispersion as an adjacent
waveguide. The open-ended “comprising” form of the claim does not preclude the existence of a
circular waveguide in combination with the first and the second coaxial waveguide.
Apparently, appellant never directly responds to a rejection for obviousness where the only
difference between Claim 1 and Liu is that the dispersion of the TE mode in the first coaxial
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waveguide is approximately the same as the dispersion of the TE mode in the second coaxial
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waveguide, even though appellant appears to agree that there are at least two coaxial waveguides
5At the bottom of page 9 of the Answer, the examiner appears to suggest that placing an inner
conducting surface within innermost waveguide 52 as disclosed by Liu is also an issue for an obviousness
enquiry. However, in view of the original statement of the rejection, the suggestion appears to be an ex post
facto expansion of the rejection.
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