Ex Parte Barber et al

Patent Trial and Appeal BoardMay 17, 2013

12221273 (P.T.A.B. May. 17, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte BRADLEY P. BARBER, PAUL P. GEHLERT, and CHRISTOPHER F. SHEPARD ____________ Appeal 2011-004477 Application 12/221,273 Technology Center 3700 ____________ Before LINDA E. HORNER, PATRICK R. SCANLON, and BART A. GERSTENBLITH, Administrative Patent Judges. GERSTENBLITH, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-004477 Application 12/221,273 2 STATEMENT OF THE CASE Bradley P. Barber, Paul P. Gehlert, and Christopher F. Shepard (“Appellants”) appeal under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 8-13. We have jurisdiction under 35 U.S.C. § 6(b). The Claimed Subject Matter Claim 8 is the sole independent claim on appeal. Claim 8 is representative of the claimed subject matter and is reproduced below. 8. A method of forming a BAW structure, the method comprising: forming a lower electrode over a substrate; forming a piezoelectric layer over said lower electrode, said piezoelectric layer comprising aluminum copper nitride; and forming an upper electrode over said piezoelectric layer. References The Examiner relies upon the following prior art references: Wajid US 5,112,642 May 12, 1992 Bishop US 6,182,340 B1 Feb. 6, 2001 Wada US 2004/0164462 A1 Aug. 26, 2004 Kim WO 2005/008889 A1 Jan. 27, 2005 Rejections The Examiner makes the following rejections: I. Claim 8 is rejected under 35 U.S.C. § 103(a) as unpatentable over Kim, Wada, and Bishop; and Appeal 2011-004477 Application 12/221,273 3 II. Claims 9-13 are rejected under 35 U.S.C. § 103(a) as unpatentable over Kim, Wada, Bishop, and Wajid. SUMMARY OF DECISION We REVERSE. OPINION Rejection I – Claim 8 The Examiner concluded that Kim, Wada, and Bishop render obvious the subject matter of claim 8. Ans. 3-4. The Examiner found that Kim discloses most of the elements of the claim, but “does not mention that the piezoelectric layer can be made up of the compositional elements of aluminum, copper, and a nitride.” Id. at 4. The Examiner also found that “in the art of forming piezoelectric layers with . . . specific piezoelectric materials and compositions, it is known to use Al [aluminum], Cu [copper] and a metal nitride, as a composition to form a piezoelectric layer.” Id. The Examiner found that Wada discloses a composition of these elements and that such a composition has piezoelectric characteristics. Id. The Examiner further found that Bishop discloses a composition of these elements as well. Id. The Examiner determined that it would have been obvious to one of ordinary skill in the art at the time of invention to modify the piezoelectric layer of Kim by including aluminum, copper, and a metal nitride, as suggested by Wada and Bishop, “to form an art recognized equivalent piezoelectric layer having the same piezoelectric characteristics.” Id. Appeal 2011-004477 Application 12/221,273 4 Appellants assert that while Wada discloses various functional fine particles, it does not contain a “specific listing or identification of which of the functional fine particles have piezoelectric characteristics.” App. Br. 6. Appellants contend that Bishop discloses the use of aluminum nitride as an electrical ceramic material used in electro active devices, but does not specifically describe aluminum copper nitride. Id. In short, Appellants’ argument is that “copper is neither described in the applied art as being a piezoelectric material, nor does the applied art disclose copper as being useful as a piezoelectric material.” Reply Br. 4. We agree. Wada discloses functional fine particles that may be contained in a matrix and endowed with anisotropy with respect to several properties. Wada, para. [0016] (referring to properties “such as electrical conductivity, heat conductivity, expansion coefficient, light transmittance, magnetism, hardness, elasticity, water absorption, dielectric constant, gas permeability, piezoelectric characteristics, and vibration absorption”). Wada further identifies “[s]pecific examples of the functional fine particles,” which include aluminum, copper, and metal nitride amongst many others. Id. Wada, however, does not disclose which of the identified functional fine particles have which of the listed property or properties, and, in particular, which particles have piezoelectric properties. Bishop discloses “[a] variety of electrical ceramic materials” that may be used in “electroactive devices.” Bishop, col. 7, ll. 9-10. Aluminum nitride and yttrium barium copper oxide are among the materials disclosed. Id. at col. 7, ll. 13-14. Bishop further explains that “[o]ther electrical Appeal 2011-004477 Application 12/221,273 5 ceramics include piezoelectric crystals which are grown.” Id. at col. 7, ll. 15-16. Copper, however, is not listed as one of the ceramics that include piezoelectric crystals. Id. at col. 7, ll. 15-18. The Examiner further relied on Bishop’s disclosure that “[o]ther electrical ceramics include those which are based on the above listed ceramics doped with small amounts of other materials to alter their electrical and/or mechanical properties” (Bishop at col. 7, ll. 18-22), but this teaching goes no further in identifying copper as a ceramic material with piezoelectric characteristics. We find that Wada and Bishop do not disclose, by a preponderance of the evidence, that copper was recognized in the art as having piezoelectric characteristics. Thus, we disagree with the Examiner’s conclusion that the subject matter of claim 8, and, in particular, a piezoelectric layer comprising aluminum copper nitride, would have been obvious to one of ordinary skill in the art at the time of invention based on the cited disclosures of Kim, Wada, and Bishop. Accordingly, we do not sustain Rejection I. Rejection II – Claims 9-13 The Examiner concluded that Kim, Wada, Bishop, and Wajid render obvious the subject matter of dependent claims 9-13. Ans. 4-5. The Examiner, however, relied upon the same factual findings with respect to Wada and Bishop that we addressed in the context of Rejection I. Accordingly, for the reasons explained in Rejection I, we do not sustain Rejection II. Appeal 2011-004477 Application 12/221,273 6 DECISION We reverse the Examiner’s decision rejecting claims 8-13. REVERSED mls