Appeal No. 2005-0813
Application No. 09/871,492
skill in the art, or the nature of the problem to be solved, but
such a showing of evidence must be clear and particular).
Additionally, as correctly argued by appellants (Brief, page 7;
Reply Brief, page 3), the examiner has not established any
factual basis to support the statement that the tunnel junction
allows the pumping current to be conducted from the top mirror to
the active region “without a potential drop” (Answer, page 5).1
We note that the examiner has found that Brillouet is “only
deficient” in failing to disclose that the quantum wells are
formed of InGaAsN (Answer, page 6, apparently referring to claim
1 on appeal). Brillouet discloses that the quantum wells are
formed of InGaAsP (col. 4, ll. 37-42). The examiner has not
established, on this record, that the use of nitrides and
phosphides as quantum well materials were equivalent or
interchangeable in this art for the particular VCSEL structure
disclosed by Brillouet. To the contrary, the examiner
specifically states that in this art “different types of quantum
well materials influence the wavelength of the emitted laser
1
1We note that the examiner later amends this statement that
a tunnel junction layer allows the pumping current to be
conducted “without a substantial potential drop” (Answer, page 5,
last sentence in ¶(10), italics added).
6
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