Appeal No. 2006-2229
Application 10/347,069
It appears to us that the artisan would also consider the diffraction
grating 18 in the various figures in Tangonan as having an additional or
separate index of refraction to the extent claimed. Even the discussion in the
background of the invention at column 1, lines 21 through 41 indicates that
different materials have different indices of refraction such as air, and
different types of glass as discussed there. Moreover, as to Tangonan’s
contribution in the art, the discussion at column 4 plainly indicates that the
attached region 18 comprising the diffraction grating is composed of a
different material than the underlining sodium glass microscope slide
substrate 10. As such, it would implicitly have a different index of
refraction.
We do not agree with appellants’ views expressed at the bottom of
page 7 of the reply brief that element 18 does not have a refractive index.
Even as discussed in the last paragraph and consistent with appellants’
appendix B to the reply brief, because different mediums or materials are
used, the artisan would well expect that a different index of refraction would
be present. It also appears that appellants’ arguments are not consistent with
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