Ex Parte KelberDownload PDFPatent Trial and Appeal BoardDec 30, 201613426823 (P.T.A.B. Dec. 30, 2016) Copy Citation United States Patent and Trademark Office UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O.Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 13/426,823 03/22/2012 Jeffry Kelber QNTM-0003-UT1 6655 80308 7590 01/03/ The Kelber Law Group 1875 Eye Street, N.W., Fifth Floor Washington, DC 20006 EXAMINER TRAN, THANH Y ART UNIT PAPER NUMBER 2817 MAIL DATE DELIVERY MODE 01/03/2017 PAPER Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JEFFRY KELBER Appeal 2015-001978 Application 13/426,8231 Technology Center 2800 Before JEFFREY S. SMITH, JOHN R. KENNY, and SCOTT E. BAIN, Administrative Patent Judges. BAIN, Administrative Patent Judge. DECISION ON APPEAL Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 1 and 3—10. An oral hearing (“Hearing”) was held on December 13, 2016. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 Appellant identifies Quantum Devices, LLC as the real party in interest. App. Br. 2. Appeal 2015-001978 Application 13/426,823 STATEMENT OF THE CASE The claimed invention relates to “faster, lower power field effect transistors” (FETs) using graphene deposited on rocksalt oxide. Spec. 13. Claims 1 and 5 are independent. Claim 1 is illustrative of the invention and the subject matter of the appeal, and reads as follows (with the disputed limitations in italics): 1. A field effect transistor (FET) for high frequency low power applications comprising: an Si(l 00) or Si (111) substrate, a layer of a rocksalt oxide (111) wherein said rocksalt oxide is either MgO or NiO formed on the surface of said substrate, a film of 1-3 monolayer (ML) graphene formed on said rocksalt oxide through chemical vapor deposition (CVD), plasma vapor deposition (PVD) or molecular beam epitaxy (MBE), a source and a drain formed on said film of 1-3 ML graphene, a gate oxide on said graphene film, and electrical contacts for said source and drain. App. Br. 17 (Claims App’x). Claims 1 and 3—10 stand rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Chung et al. (US 2012/0138903 Al; June 7, 2012) (“Chung ’903”), Chung et al. (US 2012/0175595 Al; July 12, 2012) (“Chung ’595”), and Lin et al. (US 2011/0114918 Al; May 19, 2011) (“Lin”). Final Act. 4~11; Ans. 3-10.2 2 The Examiner rejected claims 1—10 in the Final Action, but withdrew the rejection to dependent claim 2 in the Answer. Ans. 10, 16. The Examiner’s objections to the Drawings and Specification, Ans. 2—3, are not before us. See 37 C.F.R. §§ 1.113, 1.181. 2 Appeal 2015-001978 Application 13/426,823 ANALYSIS We have reviewed the Examiner’s rejection in light of Appellant’s arguments presented in this appeal. Arguments which Appellant could have made but did not make in the Briefs are deemed to be waived. See 37 C.F.R. § 41,37(c)(l)(iv). On the record before us, we are not persuaded the Examiner erred. We adopt as our own the findings and reasons set forth in the rejections from which the appeal is taken and in the Examiner’s Answer, and provide the following for highlighting and emphasis. Appellant argues the Examiner erred in finding Chung ’903 teaches “graphene formed on said rocksalt oxide [either MgO or NiO]” as recited in claim l.3 App. Br. 10-13. According to Appellant, Chung ’903 teaches a “thin layer of metal” is formed over the rocksalt oxide, and the graphene is deposited on the metal layer. App. Br. 10 (citing Chung ’903 124). Appellant argues, therefore, that Chung ’903 only teaches forming graphene on metal, as is common in the prior art, rather than forming graphene on rocksalt oxide, as recited in claim 1. App. Br. 12. We disagree. As the Examiner finds, Final Act. 5—6, Ans. 15, Chung ’903 (like Appellant’s claim 1) is directed to “graphene substrates having a graphene layer grown directly on an oxide film” such as nickel oxide. Chung ’903 3, 20 (emphasis added); see also id. at 111 (“[according to example embodiments, a method of fabricating a graphene substrate may include depositing a metal oxide film on a substrate, and depositing a graphene 3 Appellant argues the claims as a group, App. Br. 10, and we choose claim 1 as representative of the group. See 37 C.F.R. § 41.37(c)(4). 3 Appeal 2015-001978 Application 13/426,823 layer on the metal oxide film” (emphasis added)). Specifically, Chung ’903 teaches the “metal oxide film may be formed of an oxide selected from the group consisting of nickel oxide (NiO), copper oxide (CuO), and platinum oxide (PtO),” id. at 110, and the “graphene layer [] may be formed on the metal oxide film,” id. at 121. See also Ans. 11—12 (citing Chung ’903 Fig. 1,1120-21).4 Appellant argues the drawings of Chung ’903 show a layer of metal film is required between the graphene and the metal oxide. App. Br. 11. Figure 1 is reproduced below. FIG. i joe Figure 1 is a “schematic cross-sectional view of the structure of a graphene substrate” according to embodiments of Chung ’903. Chung ’903 115. Figure 1 includes silicon substrate 110, buffer layer 120, “metal oxide film 130” (rocksalt oxide) which may be “nickel oxide” (NiO), and “graphene 4 Appellant does not argue any distinction between “metal oxide” and “rocksalt oxide” (rock salt is a salt naturally occurring as a mineral, Oxford English Dictionary Online, http://www.oed.com/view/Entry/166775? redirectedFrom=rock+salt#eid (last visited Dec. 22, 2016)). In any event, the substance NiO in Chung ’903 is one of the two alternatives recited in claim 1 (NiO or MgO). 4 Appeal 2015-001978 Application 13/426,823 layer” 140. Id. at 120. Figure 1 also illustrates, with a dotted line and same shading as the metal oxide film 130, “Ni-rich film 132” which, according to Chung ’903, “may be formed on a surface layer” of the nickel oxide. Id. (emphasis added); see also id. at 130. Appellant argues Figure 1, therefore, illustrates graphene on nickel, not graphene on nickel oxide (or magnesium oxide) as recited in claim 1. App. Br. 11. The Examiner finds, however, that the inclusion of a Ni-rich film layer in Figure 1 is merely an alternative embodiment, as indicated by the qualifying language in the disclosure that Ni-rich film “may” be formed. Ans. 14 (emphasis added). We are not persuaded of error in the Examiner’s finding. In the paragraphs immediately following the disclosure that Ni-rich film “may” be formed, Chung ’903 repeatedly omits mention of Ni-rich film when describing formation or deposit of the graphene layer. Specifically, Chung ’903 states, the “graphene layer 140 may be formed on the metal oxide film 130” (121), the “graphene layer may be directly deposited on the metal oxide” (122), and “a graphene layer 240 may be formed on the NiO film 230 by supplying a carbon-containing gas using a conventional method” (125).5 Appellant replies, notwithstanding the foregoing, that Chung ’903 simply “does not teach any method . . . other than depositing a layer of 5 Paragraph 25 refers to Figure 2B, which is another cross section of a graphene substrate, illustrating graphene on metal oxide. Unlike the embodiment shown in Figure 1, Figure 2B does not illustrate any optional metal film layer on or part of the metal oxide. Because the Examiner’s Answer disclaims any reliance on Figures 2A and 2B, see Ans. 12, we do not base our decision on those figures, but we note they are consistent with the Examiner’s findings regarding the teachings of Chung ’903. 5 Appeal 2015-001978 Application 13/426,823 nickel over the nickel oxide” and depositing the graphene on nickel. Reply Br. 5. Appellant, however, has proffered no evidence on the record before us in support of this argument. See, e.g., In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984) (attorney arguments and conclusory statements unsupported by factual evidence are entitled to little probative value). The only alleged evidence cited in Appellant’s briefs, beyond mere attorney argument, consists of two Wikipedia references relating only to Appellant’s argument on claim 2 (distinguishing nickel from magnesium), not the disputed limitation of claim 1. App. Br. 14.6 On the record before us, therefore, Appellant has not overcome the Examiner’s prima facie case of obviousness, including reliance on the express teachings of Chung ’903. See In re Sasse, 629 F.2d 675, 681 (CCPA 1980). For the foregoing reasons, we sustain the rejection of claims 1 and 3— 10 under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Chung ’903, Chung ’595, and Lin. DECISION We AFFIRM the Examiner’s rejections of claims 1 and 3—10. 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). See 37 C.F.R. § 41.50(f). AFFIRMED 6 Because the Examiner has withdrawn the rejection of claim 2, we need not decide whether these “reformatted” Wikipedia entries, App. Br. 14, which Appellant alleges were added to the record by “amendment,” Id. at 20, may be relied on as evidence. 6 Copy with citationCopy as parenthetical citation