Appeal No. 2006-0996
Application No. 10/162,516
With respect to claims 1, 27, 38 and 48, we will sustain the examiner’s anticipation
rejection based on Lee. We do not agree with appellants’ argument that the
wavelengths selected in Lee do not use the model traces. As appellants point out, the
wavelengths 2.8eV and 3.3eV were selected because changes in Δ and Ψ of traces
were observed at these wavelengths. These changes in Δ and Ψ were determined from
previous model input spectra that indicated oscillations at wavelengths of 2.8eV and
3.3eV. In other words, the wavelengths 2.8eV and 3.3eV were not selected at random,
but instead, were selected based on previous observations of spectrum data using a
spectrum of wavelengths. Therefore, we find that the wavelengths selected in Lee
come from model selection criteria based on what wavelengths produce observable
changes in Δ and Ψ over time.
With respect to claim 54, we will also sustain the examiner’s anticipation rejection
based on Lee. Although we agree with appellants that the examiner has changed
positions from the final rejection to the answer, we find, nevertheless,
that the disclosure of Lee supports the rejection. The recitation in claim 54 that “each
set of selected wavelengths is associated with one or more termination criteria and
wavelength selection criteria” is met by a single termination criterion and a single
selection criterion. The set of selected wavelengths in Lee (2.0eV, 2.8eV, 3.3eV and
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