Appeal No. 2006-0741
Reexamination Control No. 90/006,185
At oral hearing the panel pointed out to counsel for the appellant that none of the three
independent claims recites broadband illumination and that only claim 27 recites that the source
illumination has a range of wavelengths, which may be construed as broadband illumination.
The response from counsel for the appellant was that appellant’s claims 1 and 28 likewise
require the source of illumination to have a range of wavelengths, and thus broadband
illumination, because claims 1 and 28 recite that the applied illumination diffracts or reflects
with an intensity that is a function of wavelength and that the diffracted illumination is measured
as a function of wavelength. We agree. In light of the claim language to the effect that the
diffracted or reflected radiation has an intensity which is a function of wavelength and that the
diffracted or reflected radiation is measured as a function of wavelength, the claims are properly
interpreted as requiring source illumination which has a range of wavelengths. If not, then the
diffracted or reflected radiation could not reasonably be deemed as “measured as a function of
wavelength.”2 There is no dispute between the examiner and the appellant in that regard. Single
wavelength source illumination such as the laser light of Raymond is not sufficient for meeting
2 We recognize that claim 12 depends ultimately from claim 1 and further requires that
the radiation has a range of wavelengths, which additional requirement is an indication that
claim 1 does not by itself require the radiation to have a range of wavelengths per application of
the doctrine of claim differentiation. However, the doctrine is not a controlling factor for claim
interpretation. Here, the language of claim 1 compels a conclusion otherwise.
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