Ex Parte Lan et al

Board of Patent Appeals and Interferences

Mar 29, 2010

11089708 (B.P.A.I. Mar. 29, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte ZHIDA LAN, SAMEER HADDAD,
and STEVEN AVANZINO

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Appeal 2009-001619
Application 11/089,708
Technology Center 2800
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Decided: March 29, 2010
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Before ROBERT E. NAPPI, THOMAS S. HAHN,
and ELENI MANTIS MERCADER, Administrative Patent Judges.

HAHN, Administrative Patent Judge.

DECISION ON APPEAL
Appellants invoke our review under 35 U.S.C. § 134(a) from the
Examiner’s final rejection of claims 1-16. We have jurisdiction under 35
U.S.C. § 6(b). We reverse.

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STATEMENT OF THE CASE
Appellants claim a bi-stable memory device having first and second
electrodes with both a passive layer and an active layer between the first and
second electrodes. This active layer is made of first and second active layer
materials with the second active layer material being in the first active layer
material, and the combined first and second active layer materials having a
diffusion coefficient that is different from the diffusion coefficient for the
first active layer material .1 Claim 1 is illustrative:
1. A memory device comprising:

first and second electrodes;

a passive layer between the first and second electrodes; and

an active layer between the first and second electrodes;

the active layer comprising a first active layer material and a
second active layer material in the first active layer material, the
first active layer material having a first diffusion coefficient,
the combined first and second active layer materials having a
second diffusion coefficient different from the first diffusion
coefficient.

1 See generally Spec. 5:17-6:24; Figs. 5-8.
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The Examiner relies on the following prior art references to show
unpatentability:
Krieger US 2004/0026729 A9 Feb. 12, 2004
Wright, Theory of Copper Vacancy in Cuprous Oxide, Journal of Applied
Physics, Volume 92, No. 10, Nov. 15, 2002, pp. 5849-5851. (“Wright”).
1. The Examiner rejected claims 1-7 and 9-15 under 35 U.S.C. §
102(b) as being anticipated by Krieger (Ans. 3-7).
2. The Examiner rejected claims 8 and 16 under 35 U.S.C. § 103(a) as
being unpatentable over Krieger and Wright (Ans. 7-9).
Rather than repeat the arguments of Appellants or of the Examiner,
we refer to the Appeal Brief filed Feb. 28, 2008, the Examiner’s Answer
mailed May 12, 2008, and the Rebuttal Brief filed May 19, 2008 for their
respective details.
Appellants’ Arguments
Appellants group claims 1-7 and 9-15 that are rejected as being
anticipated by Krieger, and argue limitations acknowledged as being
similarly recited in independent claims 1 and 9 (App. Br. 8-13).
Specifically, Appellants assert that independent claims 1 and 9 cover an
active layer, whereas Krieger teaches “two separate active layers 3A, 3B,
separated by a barrier layer 4 inserted therebetween” (App. Br. 10) (italics
substituted for underlining emphasis).

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Appellants group dependent claims 8 and 16 that are rejected under
§ 103(a), and argue these claims are allowable because of their dependencies
from base independent claims 1 and 9 that are asserted as being patentable
(id.).

ISSUE
With respect to the 35 U.S.C. § 102(b) rejection of independent claims
1 and 9, does Krieger either explicitly or inherently teach the claimed active
layer made of first and second active layer materials with the second active
layer material being in the first active layer material?

FINDINGS OF FACT
The record supports the following Findings of Fact (FF) by a
preponderance of the evidence:
1. Krieger discloses a high/low impedance memory device having an
active layer and a passive layer stacked between first and second
electrodes (Abstract).
2. Krieger’s memory device may also include a barrier layer made of a
material that impedes spontaneous movement of charged species (¶¶
[0030], [0031]).
3. Krieger discloses a memory device 60 incorporating a barrier layer
that “compris[es] a layer stack sandwiched between upper and lower
electrodes 1 and 2, the layer stack including a pair of active layers 3
including a first, upper active layer 3A and a second, lower active
layer 3B, a barrier layer 4 inserted between the first, upper active layer
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3A and the second, lower active layer 3B, and a lower passive layer 5”
(¶ [0075]; Fig. 8 (reproduced below for reference)).

Reproduction of Krieger’s Figure 8 Showing a Sectional Cross-Sectional
View of a Memory Device including a Barrier Layer

ANALYSIS
Anticipation
Claims 1-7 and 9-15
Based on the record, we are persuaded the Examiner erred in rejecting
the independent claims 1 and 9 as being anticipated by Krieger.
Turning to Krieger, we concur in the Examiner finding the reference
teaches a memory device, having first and second electrodes, and a passive
layer (Ans. 3; FF 1). Appellants do not dispute these findings.
Instead, Appellants rely on claims 1 and 9 reciting “an active layer . . .
comprising a first active layer material and a second active layer material in
the first active layer material,” and argue that these limitations “clearly
distinguishes over Krieger . . . Figure 8 illustrat[ing] two separate active
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layers 3A, 3B, separated by a barrier layer 4 inserted therebetween” (App.
Br. 10) (italics substituted for underlining emphasis). This argument is
directed to the Examiner’s findings that Krieger teaches an “active layer
(reference numeral[s] 3A, 4 and 3B) . . . comprising first active material
(Cu2O; see par.[0056]) and second active layer material (layer 4 composed
of metal Al will serve as second active layer material; see par.[0062], lines
32-35) in the first active material (Cu2O) (see fig. 8)” (Ans. 3).
The Examiner responds to Appellants’ argument with the assertion
that “the term ‘barrier layer’ is merely a nomenclature. As stated in Krieger
‘729 at paragraph [0062], lines 32-35, the barrier layer (4) includes of
aluminum, which is the claimed second active layer material (see the
pending claim 7 of the present application)” (Ans. 10). Appellants continue
in arguing that “barrier layer (4) of Figure 8 of Krieger ‘729 (cited by the
Examiner) is between the active layers 3A, 3B and is a separate layer
therefrom, and in stacked relation therewith” (Reply Br. 2) (italics
substituted for underlining emphasis).
On this record we agree with Appellants, because in giving
independent claims 1 and 9 reasonably broad construction we find them to
cover an active layer made with first and second materials that are combined
so that the second material is in the first to form the covered active layer.2
The Examiner indicates acknowledgment that it is an active layer that is
claimed by the finding that Krieger teaches an “active layer (reference
numeral[s] 3A, 4 and 3B)” (Ans. 3).

2 See Phillips v. AWH Corp., 415 F.3d 1303, 1316 (Fed. Cir. 2005)
(Examined claims must be given their “broadest reasonable” interpretation
consistent with the specification. (citation omitted)).
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We, however, do not agree that Krieger teaches an active layer,
because we find Krieger teaches a stack structure of active layers that
includes a pair of active layers 3A and 3B, along with a barrier layer 4
inserted between the first, upper active layer 3A and the second, lower active
layer 3B (FF 3). Nowhere do we find Krieger expressly or inherently teaches
a barrier layer material being combined in an active layer material to provide
an active layer, as is claimed. Consequently, we do not find either
independent claims 1 or 9 reading on Krieger’s stacked structure of active
layers.3
For the foregoing reasons, Appellants have persuaded us of error with
respect to the rejection under § 102(b), and we will not sustain the
Examiner’s rejection of independent claims 1 and 9, nor the rejection of their
respective dependent claims 2-7 and 10-15 that incorporate the disputed
limitations.
Obviousness
Claims 8 and 16
Based on the record, we are persuaded the Examiner erred in rejecting
claims 8 and 16 over the § 103(a) combination of Krieger and Wright.
Appellants assert that claims 8 and 16 are patentable for the same
reasons that their respective base independent claims 8 and 16 are patentable
(App. Br. 13). The Examiner has not shown that Wright remedies Krieger

3 See Verdegaal Bros., Inc. v. Union Oil Co. of Cal., 814 F.2d 628, 631
(Fed. Cir. 1987) (“A claim is anticipated only if each and every element as
set forth in the claim is found, either expressly or inherently described, in a
single prior art reference.”).

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deficiencies discussed supra, nor do we find such cure from Wright. We,
accordingly, will also not sustain the Examiner’s rejection of claims 8 and
16.

ORDER
The Examiner’s decision rejecting claims 1-16 is reversed.

REVERSED

KIS

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