Appeal No. 2006-1095 Page 7
Application No. 10/280,188
The examiner responds that Boiarski discloses that the thickness and
width of the waveguide are sufficient to support multimode light (col. 8, lines
44-45); hence, multiple modes propagate within the optical waveguide and
the coupling region in one embodiment of Boiarski’s invention [answer, page
13]. The examiner notes that Boiarski discloses when antigens in a sample
bind to the antibodies in the coupling region, the refractive index changes,
changing the relative intensity of light measured by the detectors (see col.
5, lines 33-42) [id.]. The examiner acknowledges that Boiarski does not
explicitly state that the change in the refractive index affects the interaction
of the propagation modes [id.]. However, the examiner asserts that a
change in the refractive index of a waveguide (including the surrounding
cladding/coating materials) inherently produces a change in the mode
interaction when multiple modes are propagating through the region where
the refractive index changes [id.].
In the reply brief, appellants further argue that Boiarski is silent on
multiple propagational modes in general and chemical or biological binding
which causes a change in the refractive index affecting the interaction of the
propagational modes [reply brief, page 2].
We begin by noting that the Court of Appeals for the Federal Circuit
has determined that anticipation of a patent claim requires a finding that the
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