Ex Parte Kishima - Page 3



          Appeal No. 2005-0873                                                        
          Application 10/067,347                                                      
               Claims 65 through 79 stand rejected under 35 U.S.C. § 103(a)           
          as unpatentable over Althaus in view of Knapp.                              
                                   OPINION                                            
               We have carefully considered the rejections on appeal in               
          light of the arguments of the appellant and the examiner.  As a             
          result of this review, we have reached the conclusion that the              
          claims on appeal do not lack novelty over the Althaus reference             
          and are not obvious over Althaus in view of Knapp.  Our reasons             
          follow.                                                                     
               The first issue to consider is the construction of claims 50           
          and 79, the independent claims on appeal.  Taking claim 50 as our           
          example, we note that the first clause after the preamble calls             
          for a lens substrate having a plurality of convex portions                  
          extending therefrom.  We note that the next clause calls for the            
          substrate having a mask layer thereon.  As we noted to counsel at           
          oral hearing, the plurality of convex portions are not fully                
          formed until the mask layer is entirely consumed in the etching             
          process.  Therefore, there would not seem to be any point in time           
          where the substrate had a plurality of convex portions and still            
          had mask layer deposited thereon.  According to the appellant’s             
          counsel at oral hearing, the independent claims should be                   
          understood as directed to an intermediate product having nascent,           
          not fully formed, convex portions that are still covered by some            

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