Appeal No. 2006-1095 Page 13
Application No. 10/280,188
region [answer, page 20, ¶3]. The examiner further notes that since the
light resulting from the interaction of the propagation modes that results
from the change in refractive index is detected, the affect on the interaction
of the propagation modes is used for detection purposes [id.].
Regarding appellants’ arguments that the examiner is relying upon
inherency in formulating the rejection, we restate our comments supra that
appellants have not met their burden of proving that the subject matter
shown to be in the prior art does not possess the characteristic relied on by
the examiner. See In re King, 801 F.2d at 1327, 231 USPQ at 138.
In addition, we note that appellants have recognized in the brief that
Dietz explicitly discloses (at col. 7, lines 25 and 26) that “‘waveguides 44
and 48 support one or more guided modes each’” [brief, page 5, emphasis
added]. We note that appellants further acknowledge: “Applicant takes this
passage simply to state that these are multi-mode waveguides” [brief, page
5, ¶1, emphasis added]. In particular, we note that appellants further
argue: “this is not to say that they [i.e., Dietz’s multi-mode waveguides] are
used for any purpose in particular” [brief, page 5, emphasis added].
Significantly, we note that appellants assert that Dietz’s disclosure of
“Light/Sensor Area Interaction” (col. 8, lines 45-65) does not disclose the
“use of propagational modes for detection purposes” [brief, page 5, ¶1,
emphasis added].
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