Appeal No. 2005-0813
Application No. 09/871,492
conducted to the active region without a substantial potential
drop.” Answer, page 5.
As correctly argued by appellants (Brief, page 6), the
examiner has erroneously found that Lebby discloses all elements
of the claims except for the tunnel junction layer. In addition
to failing to disclose or suggest a tunnel junction layer, Lebby
discloses that the two DBR mirrors should be of opposite p-type
and n-type doping contrary to the requirement of claim 1 on
appeal that both mirrors be doped n-type (Brief, page 5; Lebby,
col. 5, ll. 1-18). Accordingly, where the legal conclusion of
obviousness is not supported by facts, it cannot stand. See In
re Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA 1967).
The examiner has changed the findings of facts and
conclusion of law in the Answer in the “Response to Argument”
section (Answer, ¶(11), pages 5-6). In this “Response,” the
examiner implicitly agrees with appellants’ argument (Brief,
pages 5-6) by finding that Lebby is “only deficient” in two
aspects, namely Lebby fails to disclose that the first and second
mirrors are both n-type and there is a tunnel junction layer
included in the second mirror (Answer, sentence bridging pages 5-
6). The examiner now applies Brillouet for the teaching of
including a tunnel junction layer in a VCSEL as well as requiring
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