Appeal No. 2006-0996
Application No. 10/162,516
Both of the examiner’s rejections relied on the patent to Lee
(U.S. Patent No. 5,835,221). Appellants assert that the Board’s
decision failed to specify how the Board’s conclusion is supported
by the disclosure of the Lee reference, either expressly or under
the principles of inherency. More particularly, appellants argue
that the decision fails to explain the basis for the statement in
the decision that “[i]n 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” [Request, page 2]. Appellants assert that the
disclosure in Lee that “2.8 eV and 3.3 eV were selected because
traces with observable changes in ∆ and Θ over time are also
obtained when these wavelengths are monitored” does not expressly
disclose previously observing spectrum data using a spectrum of
wavelengths. Appellants note that the sentence simply states a
factual conclusion and not a previous observation. Appellants also
note that previous observations are not inherent in Lee because the
selected wavelengths could be based on the material properties of
polysilicon rather than on previous observations of spectrum data
[id., pages 3-4].
We have reconsidered our decision of May 15, 2006 in light of
appellants' comments in the Request for Rehearing, and we find no
error therein. We, therefore, decline to make any changes in our
prior decision for the reasons which follow. We are not persuaded
by appellants’ arguments that Lee fails to teach that wavelengths
are selected based on previous observations. Lee discloses that a
signal is monitored at four different wavelengths. The wavelengths
2.0 eV and 4.0 eV were selected because traces have observable
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