Appeal No. 2006-2229
Application 10/347,069
hindsight argument that appellants can make with respect to Tangonan as set
forth at the bottom of page 13 of the principal brief on appeal within 35
U.S.C. § 102, since such an argument has a place only within 35 U.S.C.
§ 103 rejections.
Finally, we note that the background art at columns 1 and 2 of
Tangonan relates to different embodiments in which different materials are
affixed together to form a single optical device. Appellants have presented
no arguments to us that Tangonan does not perform the claimed
multiplexing and demultiplexing functions, which are well documented even
in the background art of Tangonan. Significantly as well, the teachings at
column 2, lines 1 through 18 make it clear that it was known in the art that a
diffraction grating may be formed wholly within an optical waveguide in the
manner disclosed but not claimed in independent claims 12 and 19 on
appeal. Lastly, we note in passing that Tangonan’s patent bears a
publication date of 1981. We would speculate that during the more than 25
years since Tangonan’s patent was issued, the nature of the teachings of the
pertinent art throughout Tangonan would have significantly matured.
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