Appeal No. 2005-2111 8
Application No. 09/827,454
A reference may be said to “teach away” when a person of ordinary skill, upon
[examining] the reference, would be discouraged from following the path set out in the
reference or would be led in a direction divergent from the path that was taken by the
applicant. In re Gurley, 27 F.3d 551, 553, 31 USPQ2d 1130, 1131 (Fed. Cir. 1994). Also
see W.L. Gore & Assoc. v. Garlock, Inc., 721 F.2d 1540, 1550, 220 USPQ 303, 311 (Fed.
Cir. 1983), indicating that it was error to find obviousness where references “diverge from
and teach away from the invention at hand.”
In the instant case, Akkapeddi’s device, as the instant invention, is clearly designed
for “correcting atmospheric phase aberrations” (abstract). At the right-hand column of
page 42 of Vasil’ev, in discussing the application of the phase conjugation broad area twin
contact semiconductor laser diodes (SLD), the reference states that because of the
filtering action of the waveguide of the SLD, SLDs “are not truly suitable for turbulence
aberration correction as opposed to Na vapour or photorefractive crystals.”
Thus, Vasil’ev appears to be explicitly stating that the phase conjugator disclosed
therein would not be useful in correcting for the very thing (atmospheric phase
aberrations) that Akkapeddi is interested in correcting. Thus, by the very terms of the
disclosure of the references, an artisan would be specifically directed to avoid the very
combination that the examiner finds obvious.
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