Appeal No. 1999-2250
Application No. 08/980,308
for a control means because the Bragg grating is “set” to a single, corresponding
wavelength, then the setting which gives rise to the wavelength as a result of a grating
period with a regular interval would meet the claimed limitation. The problem, however,
from the standpoint of obviousness, within the meaning of 35 U.S. C. § 103, is the
question of what would have suggested setting the Bragg grating in Chawki to a grating
period with a regular interval. There is no teaching or suggestion in Chawki for so
setting the Bragg grating. The examiner recognizes this deficiency in applying
Painchaud. But the examiner’s reasoning here is that Painchaud teaches that the
period P of a Bragg grating is changeable by controlling the tilt angle and the beam
incidence angle. Therefore, reasons the examiner, these angles can be fixed and it is
possible the period has regular intervals. The examiner also contends that “[i]t is clear
and well known in the art that regular interval period of wave is to select single
wavelength and “altered” interval period of wave is to vary pitch to select different
wavelength” [sic, answer-page 4].
Appellants challenge this last statement of what is “clear and well known” and
the examiner has failed to convincingly respond to such challenge since no evidence
was proffered by the examiner to establish that which is alleged to be “clear and well
known.” Moreover, the examiner’s reliance on the allegation that the angles in
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