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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