Appeal No. 2004-2148
Application No. 09/362,397
1531, 1534, 28 USPQ2d 1955, 1957 (Fed. Cir. 1993) (quoting from In re
Spormann, 363 F.2d 444, 448, 150 USPQ 449, 452 (CCPA 1966)), “That which
may be inherent is not necessarily known. Obviousness cannot be
predicated on what is unknown.”
For the above reasons, and those presented in the Briefs, we cannot
sustain the rejection of independent claim 92 and the subject matter of
dependent claims 93 to 106.3
II.
The Examiner rejected claims 91, 98, 99 and 103 to 105 under 35
U.S.C. § 103(a) as unpatentable over the combined teachings of Challener
and Kim. (Answer, pp. 3-5). We affirm.
Appellant argues that the subject matter of claims 91, 103 and 104 is
patentable because Challener and Kim teach that achieving the required
high refraction level is difficult. (Brief, pp. 30-31).
It is not disputed that Challener discloses an information carrier
comprising at least two solid material interfaces. However, Challener does
not disclose the method for producing the intermediate silicon nitride layer.
It is also not disputed that Kim describes an information carrier and a
3 Claims 93 to 106 are linking claims that depend directly or indirectly on
claim 92. Thus, we reverse the rejection(s) of these claims that depends on
claim 92 for patentability.
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