Appeal No. 2003-1656
Application No. 09/725,973
of microlens material would have been achieved via a planarizing
technique which Jedlicka evinces was recognized in the prior art
as effective for this purpose.
The Appellants further argue that Jedlicka would not have
suggested and indeed teaches away from the modifications proposed
by the Examiner because patentee’s planarizing layer 40 is formed
directly on substrate 20 whereas appealed claim 1 requires that
the infrared filter layer be formed “as a planarizing layer not
contacting the substrate”. We share the Examiner’s view that
such arguments amount to an inappropriate attack of the applied
references individually. See In re Keller, 642 F.2d 413, 425,
208 USPQ 871, 881 (CCPA 1981). Such an attack does not militate
against an obviousness conclusion because the test for obviousness
is what the combined teachings of the applied references would
have suggested to those of ordinary skill in the art. Keller,
642 F.2d at 425, 208 USPQ at 881. For the reasons throughly
detailed above and in the answer, the combined teachings of Oozu,
Jedlicka and Chiulli would have suggested the modifications
purposed by the Examiner, and the fact that Jedlicka’s planarizing
layer 40 is formed directly on substrate 20 is simply not relevant
to the Examiner’s obviousness conclusion or his rationale in
support thereof.
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