Ex Parte Rinerson et al

Patent Trial and Appeal Board

Nov 18, 2013

11095026 (P.T.A.B. Nov. 18, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE
THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte DARRELL RINERSON,1
Christophe J. Chevallier, Wayne Kinney, Roy Lambertson,
Steven W. Longcor,2 John E. Sanchez, Jr., Lawrence Schloss,
Philip F.S. Swab, and Edmond Ward
________________

Appeal 2011-001562
Application 11/095,026
Technology Center 2800
________________

Before BEVERLY A. FRANKLIN, LINDA M. GAUDETTE, and
MARK NAGUMO, Administrative Patent Judges.

NAGUMO, Administrative Patent Judge.

DECISION ON APPEAL

1 The real party in interest is listed as Unity Semiconductor Corporation.
(Appeal Brief, filed 6 January 2010 (“Br.”), 2.)
2 A petition under 37 C.F.R. §1.42 filed 25 August 2009, requesting
deletion of Steven W. Longcor as an inventor, has not been decided.
Appeal 2011-001562
Application 11/095,026

2
Darrell Rinerson, Christophe J. Chevallier, Wayne Kinney,
Roy Lambertson, Steven W. Longcor, John E. Sanchez, Jr.,
Lawrence Schloss, Philip F.S. Swab, and Edmond Ward (“Rinerson”) timely
appeal under 35 U.S.C. § 134(a) from the Final Rejection3 of claims 1-3,
7-10, 13-20, 23-30, 33-40, and 43-45.4 We have jurisdiction. 35 U.S.C. § 6.
We affirm.
OPINION
A. Introduction5
The subject matter on appeal relates to non-volatile memory, i.e.,
memory that does not require a continuous power supply to retain
information. (Spec. 1.) The memory elements described in
the 026 Specification rely on a “hysteresis that exhibits a resistive state
change upon application of a voltage while allowing non-destructive reads.”
(Id. at 13 [0029].) A critical element of the claimed invention is an
electrolytic tunnel barrier, i.e., a layer of material that is thin enough that
electrons can quantum mechanically tunnel through it at voltages relevant
for memory elements, and one that also “provides an ion transport

3 Office action mailed 5 May 2009 (“Final Rejection”; cited as “FR”).
4 Remaining copending claims have been withdrawn from consideration
(FR 1, ¶ 4a; Br. 4) and are not before us.
5 Application 11/095,026, Memory using mixed valence conductive oxides,
filed 30 March 2005, as a continuation-in-part of 10/934,951, filed 3
September 2004, now U.S. Patent 7,538,338, and as a continuation-in-part
of 10/773,549, file 6 February 2004, now U.S. Patent 7,082,052. The
Specification is referred to as the “026 Specification,” and is cited as “Spec.”
Appeal 2011-001562
Application 11/095,026

3
mechanism between positive and negative electrodes.” (Id. at 17 [0039].)
According to the ’026 Specification, tunneling barriers are typically
between 10 and 50 angstroms thick. Because tunneling decreases
exponentially with barrier thickness, a small increase in thickness results in a
large decrease in tunneling. (E.g., id. at 15 [0033] and at 19 [0044].) Simple
two-terminal (resistor like) and three-terminal (transistor-like) memory
elements are said to be enabled for both one-time programmable memories
as well as reprogrammable memories according to the stability and
activation energies of the metal oxides used to form the electrolytic tunnel
barrier. (Id. at 18 [0046].)
Representative Claim 1 reads:
A memory element, comprising:
a mixed valence conductive oxide
that is less conductive in its oxygen deficient state; and
an electrolytic tunnel barrier
that is an electrolyte to oxygen and
promotes an electric field effective to cause oxygen
ionic motion.
(Claims App., Br. 32; indentation, paragraphing, and emphasis added.)
The Examiner maintains the following ground of rejection:6
Claims 1-3, 7-10, 13-20, 23-30, 33-40, and 43-45 stand rejected
under 35 U.S.C. § 102(e), or under 35 U.S.C. § 103(a) in view
of Wu.7

6 Examiner’s Answer mailed 12 July 2010 (“Ans.”).
7 Naijuan Wu et al., Switchable resistive perovskite microelectronic device
with multi-layer thin film structure, U.S. Patent Application Publication
2005/0151156 A1 ((2005).
Appeal 2011-001562
Application 11/095,026

4
B. Discussion
Findings of fact throughout this Opinion are supported by a
preponderance of the evidence of record.
Initially, we find that Rinerson has not presented substantive
arguments for the separate patentability of any claim. Therefore, all claims
stand or fall with claim 1.
The issue dispositive of this appeal is whether, as Rinerson contends,
the Examiner erred harmfully in finding that the buffer layers described by
Wu can function as electrolytes.
On appeal, it is the burden of the Appellant to demonstrate harmful
error in the rejections maintained by the Examiner. See, e.g., Shinseki v.
Sanders, 556 U.S. 396, 409-10 (2009) (citations omitted) (“Lower court
cases make clear that courts have correlated review of ordinary
administrative proceedings to appellate review of civil cases in this respect.
. . . [T]he party seeking reversal normally must explain why the erroneous
ruling caused harm.”) See also, In re Chapman, 595 F.3d 1330, 1338 (Fed.
Cir. 2010) (discussing the role of harmless error in appeals from decisions of
the Board of Patent Appeals and Interferences (“Board”)).
App
App

Figu
{

cond
layer
is sa
to ot
mad
(“CM
mate
[sic:
mate
prefe
eal 2011-0
lication 11
The Exa
re 1, below
Fig. 1b sho
change e
The mem
uctive ele
14 and an
ndwiched
her circuit
e of a pero
R”) mate
rial of var
yttrium-]
rials. (Id.
rably in th
01562
/095,026
miner find
.
ws a buff
ffect mem
ory elem
ctrode laye
electrode
by buffer l
elements.
vskite-rela
rial. (Id. a
ious sorts,
stab[iliz]ed
at [0025].
e range fr
s that Wu
ered electr
ory eleme
ent compri
r 12 that i
contact pa
ayers 13 a
(Wu 2 [0
ted materi
t [0024].)
including
ZrO2 (YS
) Wu teac
om approx
5
describes
ic pulse in
nt; buffer
ses a subs
n turn supp
d 19. The
nd 15 (pin
020].) Sw
al such as
The buffe
non-perov
Z)” as we
hes that “[
imately 1
a memory
duced non
layers 13,
trate 11 su
orts a sw
switchab
k, grey). W
itchable fu
a colossal
r layers ar
skite oxid
ll as switc
t]he buffer
nm to abo
element s
volatile re
15, pink/g
pporting a
itchable fu
le function
ires 17 a
nction lay
magnetic
e made of
es such as
hable CM
layer thic
ut 500 nm
hown in
sistance
rey}

nction
layer 14
nd 18 lead
er 14 is
resistance
insulating
“yittrium-
R
kness is
.” (Id.)

Appeal 2011-001562
Application 11/095,026

6
According to Wu, the presence of the buffer layers lowers the magnitude of
short voltage pulses that must be applied to the non-volatile memory element
to induce a change in the resistance by a factor of three, from about 13V to
about 3V. (Wu 3 [0029]-[0030]; Fig. 2 and Fig. 3.)
In particular, the Examiner finds that the first example, described at
starting at [0028], comprises a 600 nm film of Pr0.7Ca0.3MnO3 (“PMCO”)
and a “thin” buffer layer of unstated thickness. (Ans. 3.) [The buffer layer
in the example described in [0030] and Fig. 3 is said to be yttrium-stabilized
zirconia, “YSZ.”] The Examiner finds further that the second example,
described by Wu at [0033], teaches that the buffer layer is “a very thin (few
nm) layer.” (Ans. 3.) The Examiner finds that it is “not unreasonable to
consider the lower end of the range to be the most relevant.” (Id.) The
Examiner concludes that “[i]n the lower end of the range the layers are thin
enough to be labeled and function as ‘tunnel barriers’, i.e., capable of
allowing tunneling of carriers or ions.” (Id.)
The Examiner’s findings regarding Wu’s disclosure of buffer layers of
yttrium-stabilized zirconia (YSZ) are problematic. Rinerson does disclose
that stabilized zirconia can be a suitable ionic electrolyte. (Spec. 17 [0039].)
The Examiner’s reasoning that a sufficiently thin buffer layer of YSZ would
inherently be a tunnel barrier to electrons is supported by the disclosure that
such layers 10 to 40 angstroms thick have that property. The discovery that
a material or a device has a previously unappreciated property is not a
sufficient basis for patentability of a prior art material or device.
However, as Rinerson argues (Br. 13, 2d para.) Wu teaches that YSZ
is added to increase the resistance of the device while lowering the switching
Appeal 2011-001562
Application 11/095,026

7
voltage (Wu 3 [0030]). The Examiner has not explained how such a
teaching would have been understood to be compatible with the teaching of
a layer so thin that electron tunneling would occur at voltages relevant to the
operation of the memory element. We conclude that Rinerson has shown
harmful error in the Examiner’s findings that the one to five nm thickness
range for barrier layers taught by Wu must refer to YSZ buffer layers. In
reaching this conclusion, we decline to give any weight to Rinerson’s
extensive arguments (Br. 16-18) regarding the “well known calculations for
oxygen mobility through YSZ” (id. at 16) because Rinerson has not come
forward with credible evidence regarding the underlying facts or the “well
known” status of the calculations. It is well settled that “[a]ttorney’s
argument in a brief cannot take the place of evidence.” In re Pearson, 494
F.2d 1399, 1405 (CCPA 1974).
Rinerson’s arguments, although not implausible, are founded on
technical facts in an area of esoteric technology. It would be inappropriate
for the Board to take judicial notice of such facts. In re Ahlert, 424 F.2d
1088, 1027 (CCPA 1970) (“[A]ssertions of technical facts in areas of
esoteric technology must always be supported by citation to some reference
work recognized as standard in the pertinent art. . . . Allegations concerning
specific ‘knowledge’ of the prior art, which might be peculiar to a particular
art should also be supported . . . ”.) Moreover, we decline to scour the
record, not to mention the technical literature not of record, to evaluate the
credibility of the teachings we might find there, and then weigh that
evidence against the evidence and conclusions drawn by the Examiner. Our
role is review, not advocacy.
Appeal 2011-001562
Application 11/095,026

8
The Examiner’s findings based on the “very thin” ferroelectric buffer
layers stand differently. Although Rinerson argues that “[f]erroelectric
materials are unambiguously not electrolytes” (Br. 14, 2d full para.),
Rinerson has not come forward with any credible evidence in support of this
statement. Similarly, Rinerson’s statement that oxygen vacancies are “a
well known defect mechanism in ferroelectric materials . . . , and are
universally avoided in ferroelectric films” (id.) is also unsupported by
citation to credible evidence of record.
We conclude that Rinerson’s arguments fail to establish harmful error
in the Examiner’s rejections based on the “very thin” ferroelectric buffer
layers described by Wu, and we affirm the rejections on this basis.
C. Order
We affirm the rejection of claims 1-3, 7-10, 13-20, 23-30, 33-40,
and 43-45.
AFFIRMED

cdc