Appeal No. 2005-0813
Application No. 09/871,492
that both mirrors are doped n-type (Answer, page 6). The
examiner finds that “the improvement of Brillouet is the tunnel
junction combined with the two n-type mirrors” and that in order
for the VCSEL of Lebby to “work properly” with the tunnel
junction of Brillouet “the improvement must also include the two
n-type top and bottom mirrors.” Answer, page 6.
When determining the patentability of a claimed invention
which combines two known elements, the question is whether there
is something in the prior art as a whole to suggest the
desirability, and thus the obviousness, of making the
combination. See In re Gordon, 733 F.2d 900, 902, 221 USPQ 1125,
1127 (Fed. Cir. 1984); Lindemann Maschinenfabrik GMBH v. American
Hoist & Derrick Co., 730 F.2d 1452, 1462, 221 USPQ 481, 488 (Fed.
Cir. 1984). As correctly argued by appellants (Brief, page 6;
Reply Brief, page 2), the examiner has not established why one of
ordinary skill in this art would have desired modifying the Lebby
structure with the tunnel junction layer taught by Brillouet,
which would necessitate changing the doping of both mirrors
against the express teachings of Lebby. See In re Dembiczak, 175
F.3d 994, 999, 50 USPQ2d 1614, 1617 (Fed. Cir. 1999)(evidence of
a motivation, suggestion or teaching to combine may flow from the
prior art references themselves, the knowledge of one of ordinary
5
Page: Previous 1 2 3 4 5 6 7 8 9 Next
Last modified: November 3, 2007