Appeal No. 2006-1058
Application No. 10/034,073
extent it is based upon Kataoka. We will also sustain the
examiner's § 102 rejection over Imamura as well as the examiner's
§ 103 rejection of claim 2.
We consider first the examiner's § 102 rejection of claims 1
and 5 over Okayama or Kataoka. We agree with appellants that
although Figure 2 of Okayama seems to indicate a grating having a
groove cross section in the form of a half sinusoidal wave,
Figures 3 and 4 of the reference "show the configurations of the
structure for generating the phase difference in the direction of
x in FIG. 2" (column 3, lines 28-30). Manifestly, Figures 3 and
4 of Okayama illustrate that the cross section of the grating is
not a half sinusoidal wave, as presently claimed.
The examiner's rejection of claims 1 and 5 under § 102 over
Kataoka is another matter. Figures 7, 8 and 12 of Kataoka depict
a grating having a groove bottom part that is shaped as a flat
form and a groove cross section shape that is a half sinusoidal
wave. Unlike the situation concerning the rejection over
Okayama, Kataoka does not provide any disclosure that teaches
that the cross section of the grating is anything other than a
half sinusoidal wave. We are not persuaded by appellants'
argument that "in order to show 'something' when preparing these
figures, the illustrator added 'bumps' to the figures as
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