Appeal No. 2006-0450 Παγε 7
Application No. 10/044,141
of figure 1. As claim 16 depends from claim 1, we find that
claim 1 must also cover the embodiment of figure 2. Reading
claims 1 and 16 on figure 2, we find that the claim is met by
Chun-Jen, as advanced by the examiner in the rejection. The only
alternative to this interpretation of the claims would be to find
the claims indefinite as claiming in claim 16, an alternate
embodiment which is mutually exclusive from the embodiment that
claim 1 is directed to. We decline to find this indefiniteness
as the examiner has not raised this issue on appeal. If
appellant believes from our findings that claim 16 is indefinite,
then appellant has then option of refiling the case and amending
the claims as necessary. From all of the above, we find that the
teachings of Chun-Jen anticipate claim 1. The rejection of claim
1 under 35 U.S.C. § 103(a) as being anticipated by Chun-Jen under
35 U.S.C. § 102 is affirmed. As claims 2-6 and 11-21 have not
been separately argued, the rejection of claims 2-6 and 11-21
under 35 U.S.C. § 102 is affirmed.
We turn next to the rejection of claims 7 and 9 under
35 U.S.C. § 103(a) as being unpatentable over Chun-Jen in view of
Takahashi. The examiner’s position (answer, page 15) is that
Chun-Jen does not disclose the claimed protective layers. To
overcome this deficiency of Chun-Jen, the examiner turns to
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