Appeal No. 2003-1656
Application No. 09/725,973
All of the claims on appeal stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Oozu in view of Jedlicka and
Chiulli.1
We refer to the brief and the answer for a complete exposition
of the opposing viewpoints expressed by the Appellants and by the
Examiner concerning this rejection.
OPINION
For the reasons well stated in the answer and for the reasons
set forth below, we will sustain this rejection.
As correctly indicated by the Examiner and not disputed by
the Appellants, the fabrication of Oozu (see Figures 40-41 and the
specification disclosure relating thereto) comprises a substrate
301, photoactive region 302, 304 and an infrared filter layer
315 which does not contact the substrate in accordance with the
requirements of appealed claim 1. This claim distinguishes from
1 On page 6 of the brief, the Appellants’ separately group
fabrication claims 1-5 from method claims 8-12. However, as
properly indicated by the Examiner in the paragraph bridging
pages 2 and 3 of the answer, the fabrication claims and the
method claims have not been separately argued. That is, the
arguments presented in the brief apply equally to each of these
claim groupings. Under these circumstances, we consider the
appealed claims to stand or fall together. See Ex parte Schier,
21 USPQ2d 1016, 1018 (Bd. Pat. App. & Int. 1991) and 37 CFR
§ 1.192(c)(7)(2002). Therefore, in assessing the merits of the
above noted rejection, we will focus only on representative
independent claim 1.
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