Ex Parte Grannen et al

Patent Trial and Appeal Board

Jan 8, 2019

14273506 (P.T.A.B. Jan. 8, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/273,506 05/08/2014
144019 7590 01/10/2019
Broadcom Limited
One Freedom Square
11951 Freedom Drive, 13th Floor
Reston, VA 20191
FIRST NAMED INVENTOR
Kevin J. Grannen
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
2014-006USORG 3391
EXAMINER
GORDON, BRYAN P
ART UNIT PAPER NUMBER
2837
NOTIFICATION DATE DELIVERY MODE
01/10/2019 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
cjohnson@volentine.com
iplaw@volentine.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KEVIN J. GRANNEN, PHIL NIKKEL,
TANGSHIUN YEH, CHRIS FENG, TINA L. LAMERS, and
JOHN CHOY
Appeal2018-004489
Application 14/273,506
Technology Center 2800
Before GEORGE C. BEST, WESLEY B. DERRICK, and
BRIAND. RANGE, Administrative Patent Judges.
RANGE, Administrative Patent Judge.
DECISION ON APPEAL
SUMMARY
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1-3 and 7-21. We have jurisdiction under
35 U.S.C. § 6(b).
We REVERSE.
1 Appellant is the Applicant, Avago Technologies General IP (Singapore)
PTE. LTD., which according to the Appeal Brief, is also the real party in
interest. Appeal Br. 3.
Appeal2018-004489
Application 14/273,506
STATEMENT OF THE CASE2
Appellant explains that certain bulk acoustic wave (BA W) resonators
have temperature dependent performance. Spec. ,r 4. Appellant describes
the invention as relating to a BA W resonator having properties that are less
temperature dependent. Id. ,r 5. Claim 1, reproduced below with emphasis
added to certain key recitations, is illustrative of the claimed subject matter:
1. A bulk acoustic wave (BA W) resonator, comprising:
a first electrode of a first electrode material, the first
electrode having a first electrode thickness;
a second electrode of a second electrode material, the
second electrode having a second electrode thickness; and
a piezoelectric layer between the first electrode and the
second electrode, the piezoelectric layer comprising a
piezoelectric material doped with at least one rare earth element,
and having a piezoelectric layer thickness; in which:
the BA W resonator has a resonant frequency dependent at
least in part on the first electrode thickness, the first electrode
material, the second electrode thickness, the second electrode
material, the piezoelectric layer thickness, and the piezoelectric
material, the resonant frequency having a temperature
coefficient; and
at least one of the first electrode material and the
second electrode material is a niobium alloy that, relative to
molybdenum as the respective at least one of the first electrode
material and the second electrode material, reduces the
2 In this Decision, we refer to the Final Office Action dated February 8, 2017
("Final Act."), the Appeal Brief filed July 31, 2017 ("Appeal Br."), and the
Examiner's Answer dated September 12, 2017 ("Ans.").
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Application 14/273,506
temperature coefficient of the resonant frequency of the BA W
resonator.
Appeal Br. 18 (Claims App.).
REFERENCES
The Examiner relies upon the prior art below in rejecting the claims
on appeal:
Koyanagi et al. US 2007 /0227628 Al Oct. 4, 2007
("Koyanagi")
Pacetti et al. US 2008/0195194 Al Aug. 14, 2008
("Pacetti")
Choy et al. US 2010/0327697 Al Dec. 30, 2010
("Choy")
Aburaya et al. US 2011/0006298 Al Jan. 13, 2011
(" Abura ya")
Burak et al. US 2012/0293278 Al Nov. 22, 2012
("Burak")
Bradley et al. US 2013/0176086 Al July 11, 2013
("Bradley")
REJECTIONS
The following rejections are before us on appeal:
Rejection 1. Claims 1-3, 11-16, and 19-21 3 under 35 U.S.C. § 103 as
unpatentable over Burak in view of Aburaya. Final Act. 3.
Rejection 2. Claims 7 and 8 under 35 U.S.C. § 103 as unpatentable
over Burak in view of Aburaya and in view of Pacetti. Id. at 6.
Rejection 3. Claims 9 and 10 under 35 U.S.C. § 103 as unpatentable
over Burak in view of Aburaya and in view of Koyanagi. Id.
3 Claim 19 is not referenced at page 3 of the Final Office Action, but it is
addressed at page 5.
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Application 14/273,506
Rejection 4. Claims 20 and 21 under 35 U.S.C. § 103 as unpatentable
over Burak in view of Aburaya and in view of Choy. Id. at 7.
Rejection 5. Claims 17 and 18 under 35 U.S.C. § 103 as unpatentable
over Burak in view of Aburaya and in view of Bradley. Id. at 8.
ANALYSIS
The Examiner has the initial burden of establishing a prima facie case
of obviousness based on an inherent or explicit disclosure of the claimed
subject matter under 35 U.S.C. § 103. In re Oetiker, 977 F.2d 1443, 1445
(Fed. Cir. 1992) ("[T]he examiner bears the initial burden, on review of the
prior art or on any other ground, of presenting a prima facie case of
unpatentability."). To establish a prima facie case of obviousness, the
Examiner must show that each and every limitation of the claim is described
or suggested by the prior art or would have been obvious based on the
knowledge of those of ordinary skill in the art or the inferences and creative
steps a person of ordinary skill in the art would have employed. In re Fine,
837 F.2d 1071, 1074 (Fed. Cir. 1988); KSR Int'! Co. v. Teleflex Inc., 550
U.S. 398, 417 (2007).
We need only address independent claim 1 because the Examiner's
treatment of the dependent claims does not cure the error explained below.
The Examiner finds that Burak teaches a bulk acoustic wave resonator
having the electrode and piezoelectric layer structure recited by claim 1.
Final Act. 3--4 ( citing Burak). The Examiner finds that Aburaya teaches a
device with two electrode materials where the second electrode material is
niobium alloy. Id. at 4 (citing Aburaya). The Examiner determines that:
it would have been obvious to one of ordinary skill in the art at
the time of the effective filing date to include at least one of the
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Application 14/273,506
first electrode material and the second electrode material is a
niobium alloy for the benefit of suppressing a leak current
between the first and second electrode.
Id. The Examiner further justifies the substitution by stating that "it has
been held to be within the general skill of a worker in the art to select a
known material on the basis of its suitability for the intended use as a matter
of obvious design choice." Id. at 11. The Examiner also finds that
combining Aburaya's niobium alloy into Burak's electrode would
necessarily meet the temperature coefficient recitation of claim 1. Id. at 4.
Appellant argues that Burak is a BA W resonator but Aburaya is
directed to an electronic device such as a transistor or capacitor. Appeal Br.
7; see also Burak Title; Aburaya ,r,r 2-13. Given this difference, Appellant
argues that the Examiner has not sufficiently explained why a person of skill
in the art would have combined Aburaya's niobium into one of the
electrodes of Burak. Appeal Br. 8-9; Reply Br. 7. Appellant argues that the
Examiner's conclusion is not based on evidence and that "Appellants are
again left to wonder how the reduction of leak currents leads to less
degradation, and of what kind of device." Reply Br. 7.
We agree that, on the present record, the Examiner has not adequately
explained why a person of skill in the art would have had reason to combine
Aburaya's niobium into a Burak electrode. Aburaya explains that "leak
current" may be a problem with certain electronic devices, namely
"[ e ]lectronic devices such as field-effect transistors and condensers
(capacitors)." Aburaya ,r,r 5, 8. To address the leak current, Aburaya
proposes adjusting the taper angle of one of the electrodes. Id. ,r 8. Aburaya
explains that if the first electrode includes molybdenum (Mo), it is "difficult
to adjust the taper angle." Id. ,r 9. Aburaya thus proposes using a
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Application 14/273,506
molybdenum-niobium (Mo-Nb) alloy so the taper can be formed. See, e.g.,
id. ,I 25.
The Examiner has not explained, for example, why a person of skill in
the art would have understood that leak current could be a problem with
Burak's stacked bulk acoustic resonator. The Examiner has also not
addressed whether Aburaya's taper would solve the problem (if a person of
skill in the art would have recognized the problem) or whether it would be
necessary to substitute the electrode material of Burak with a niobium alloy
in order to make such a notch. Burak's electrodes may be, for example,
tungsten, molybdenum, aluminum, platinum, ruthenium, niobium, or
hafnium (Burak ,r 44), and the Examiner has not explained why it would be
necessary to substitute these materials with a niobium alloy in order to
achieve Aburaya's taper. The Examiner also has not established that
claim 1 's niobium alloy was a known suitable material for the electrode of a
BA W resonator. 4
We, therefore, do not sustain the Examiner's rejections.
DECISION
For the above reasons, we reverse the Examiner's rejections of
claims 1-3 and 7-21.
REVERSED
4 As explained above, Aburaya does not teach use of a niobium alloy in a
BA W resonator. The Examiner relies on Pacetti as teaching a
niobium/hafnium alloy and relies on Koyanagi as teaching a
niobium/zirconium alloy. Final Act. 6-7. The Examiner, however, does not
contend that Pacetti or Koyanagi teach use of such an alloy in a BA W
resonator.
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