Appeal No. 1999-2250
Application No. 08/980,308
Painchaud can be fixed and that it is possible the period has regular intervals amounts
to no more than speculation based on hindsight since the examiner has pointed to
nothing in the applied references which would have suggested fixing the angles of tilt
and beam incidence in such a manner as to create a Bragg grating reflection filter “with
a grating period having regular intervals.” Merely because something can be done (of
course, it can be done because appellants did it) does not make it, per se, obvious to
do it, within the meaning of 35 U.S. C. § 103.
Accordingly, since we find that the examiner has failed to present a prima facie
case of obviousness with regard to independent claim 1, we will not sustain the
rejection of claims 1 and 3-5 under 35 U.S. C. § 103.
Turning, now to independent claim 6, this claim does not contain the “grating
period having regular intervals” language of independent claim 1 but does require that
there be a plurality of first optical devices and a plurality of second optical devices.
It is the examiner’s position that it would have been obvious to have more than
one first and second optical devices in Chawki because this is “mere duplication of the
essential working parts of a device” and, as such, involves only “routine skill in the art.”
Appellants argue the “direct” connection aspect of claim 6, but we are
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