Appeal 2007-1868
Application 10/441,682
We also note that the prior publication of Cherry, as a published patent application,
was more than 1 year before the filing of the instant application, and would
constitute prior art under 35 U.S.C. § 102(b). Further, we note that there is no
evidence on record (in the form of declarations or a disclosure of the doctoral
thesis) concerning Dr. Doshi’s work with the inventors of the Cherry patent. Thus,
we will not further address these arguments as they are premised on speculation
and not supported by evidence of record.
Representative claim 1, recites “an air gap defined between adjacent said
scintillator elements.” Representative claim 1 does not define the dimensions of
the air gap, in either relative or absolute terms. Thus, we concur with the
Examiner’s claim interpretation that the scope of the claim includes any air gap
between the scintillator elements.
As discussed by the Examiner and Appellants, Cherry teaches that in the
embodiment of figure 3 there is an array of scintillator elements (crystals). See
Figure 3. These elements are placed in a grid, item 18, the walls of the grid are
about 5 mm high and about 0.3 mm thick. Col. 8, ll. 50-58. As can be seen in
Figure 3 the crystals extend significantly beyond the top of the grid. Cherry
teaches that the grid is used to hold the crystals in place while a slurry of reflective
material hardens and holds the crystals together. Col. 8, ll. 58-66. As discussed
above, the Examiner finds that the grid is removed after the slurry hardens and the
space previously occupied by the grid creates the claimed air gap. Appellants’
arguments have not addressed or disputed this finding by the Examiner. Thus, by
Appellants’ acquiescence to the Examiner’s finding, we find that the Examiner has
established that there is an air gap between the crystals.
Further, we note that Appellants state on page 12 of the Brief “Even in the
short length wherein the grid is positioned, there is no air gap between the crystals,
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