11032345 (B.P.A.I. Sep. 17, 2009)

Ex Parte Czubatyj

Board of Patent Appeals and InterferencesSep 17, 2009

11032345 (B.P.A.I. Sep. 17, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte WOLODYMYR CZUBATYJ ____________ Appeal 2008-006201 Application 11/032,345 Technology Center 2800 ____________ Decided: September 18, 2009 ____________ Before CATHERINE Q. TIMM, JEFFREY T. SMITH, and MICHAEL P. COLAIANNI, Administrative Patent Judges. COLAIANNI, Administrative Patent Judge. DECISION ON APPEAL This is a decision on an appeal under 35 U.S.C. § 134 from the Examiner's final rejection of claims 6 through 11. Claims 19 through 23, which are the other claims pending in this application, stand withdrawn from consideration by the Examiner. We have jurisdiction pursuant to 35 U.S.C. § 6. We AFFIRM. Appeal 2008-006201 Application 11/032,345 STATEMENT OF THE CASE The subject matter on appeal is directed to a phase change memory. Claim 6 is illustrative: 6. A phase change memory comprising: a pair of conductors; and a phase change memory material to transition between crystalline states, said material located between said conductors. Appellant appeals the Examiner's rejection of claims 6-11 under 35 U.S.C. § 102(e) as anticipated by Furkay (US 7,005,665 B2, issued on Feb. 28, 2006). Appellant's arguments are directed to claim 6. Accordingly, we address Appellant's arguments with respect to claim 6 only. See 37 C.F.R. § 41.37(c)(1) (vii)(2009). ISSUE Has Appellant shown reversible error in the Examiner's determination that the transitional phrase "comprising" recited in claim 6 does not exclude Furkay's additional transition between the amorphous state and the Face Center Cubic state? We decide this issue in the negative. FINDING OF FACT (FF) Appellant does not specifically dispute the Examiner's finding that Furkay teaches a pair of conductors and phase change memory material, which transitions between an amorphous state and a hexagonal crystalline state. (Compare Ans. 3-5 with App. Br. 9-10 and Reply Br. 1-2). Appellant also does not specifically dispute the Examiner's finding that in the course of transitioning 2 Appeal 2008-006201 Application 11/032,345 between the amorphous state and the hexagonal crystalline state, a transition "between the face centered cubic and hexagonal state[]" occurs. Id. In this regard, Furkay's Figure 3 shows that the transition between the amorphous state and the hexagonal crystalline state requires two transitions: (1) between the amorphous state and the Face Center Cubic crystalline state and (2) between the Face Center Cubic crystalline state and the hexagonal crystalline state. (See Furkay, Fig. 3 and col. 1, ll. 15-20, col. 2, ll. 45-60, and col. 5, ll. 14-42). PRINCIPLE OF LAW The term “comprising” is open-ended and does not exclude additional, unrecited steps. In re Baxter, 656 F.2d 679, 686-87 (CCPA 1981). ANALYSIS AND CONCLUSION Appellant argues that Furkay does not teach a phase change memory having "a phase change memory material to transition between crystalline states" as recited in claim 6 because Furkay teaches that its phase change memory material transitions from an amorphous state, which is not a crystalline state, to a hexagonal crystalline state. (App. Br. 9-10). In that regard, Appellant argues that Furkay's "reversible transitions (back and forth) are between the amorphous state and one crystalline state, namely, the hexagonal state, and not between crystalline states such as the face centered cubic and hexagonal states." (App. Br. 9-10). While it is true that Furkay teaches that its phase change memory material transitions, inter alia, between an amorphous state and a hexagonal crystalline state, we disagree with Appellant that Furkay's transition does not meet the transition required by claim 6. (FF 1). 3 Appeal 2008-006201 Application 11/032,345 Furkay teaches transitioning, inter alia, between the Face Center Cubic crystalline state and the hexagonal crystalline state. (FF 1). Appellant, by virtue of employing the transitional phrase "comprising" in the preamble of claim 6, permits additional, unrecited steps such as transitioning between the amorphous state and the Face Center Cubic crystalline state during the transition to the hexagonal crystalline state. (See FF 1). Thus, we concur with the Examiner's determination that Furkay's transition between the Face Center Cubic crystalline state and the hexagonal crystalline state meets the claimed transition since the claim does not exclude Furkay's additional step of transitioning between the amorphous state and the Face Center Cubic state. With respect to Appellant's argument (Reply Br. 2) that an amorphous state is not a crystalline state, in reference to our above discussion, we note that the Examiner further relies on Furkay's Hexagonal and Face Center Cubic crystalline states to meet the claimed crystalline states. Thus, it follows that Appellant has not shown reversible error in the Examiner's determination that the transitional phrase "comprising" recited in claim 6 permits Furkay's additional step of transitioning between the amorphous state and Face Center Cubic state. Accordingly, based on the Factual Finding and legal conclusions set forth in the Answer and above, we affirm the Examiner's rejection of claims 6-11 under 35 U.S.C. § 102(e) as anticipated by Furkay. ORDER The decision of the Examiner is affirmed. TIME PERIOD 4 Appeal 2008-006201 Application 11/032,345 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv)(2009). AFFIRMED ssl TROP, PRUNER & HU, P.C. 1616 S. VOSS ROAD, SUITE 750 HOUSTON, TX 77057-2631 5