Ex Parte Perner

Patent Trials and Appeals Board

Jan 31, 2019

14232808 - (D) (P.T.A.B. Jan. 31, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/232,808 01/14/2014 Frederick Perner
56436 7590 02/04/2019
Hewlett Packard Enterprise
3404 E. Harmony Road
Mail Stop 79
Fort Collins, CO 80528
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.
83786534 3235
EXAMINER
TRAN, ANTHAN
ART UNIT PAPER NUMBER
2825
NOTIFICATION DATE DELIVERY MODE
02/04/2019 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):
hpe.ip.mail@hpe.com
chris.mania@hpe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FREDERICK PERNER
Appeal 201 7-009711
Application 14/232,808
Technology Center 2800
Before JEFFREY T. SMITH, CHRISTOPHER C. KENNEDY, and
MONTE T. SQUIRE, Administrative Patent Judges.
SQUIRE, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 1-20, which constitute all the claims pending in this
application. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 In explaining our Decision, we refer to the Specification filed January 14,
2014 ("Spec."); Final Office Action dated October 22, 2015 ("Final Act.");
Appeal Brief filed February 22, 2016 ("Appeal Br."); Examiner's Answer
dated May 12, 2017 ("Ans."); and Reply Brief filed July 6, 2017 ("Reply
Br.").
2 Hewlett Packard Enterprise Development LP is identified as the real party
in interest. Appeal Br. 2.
Appeal2017-009711
Application 14/232,808
The Claimed Invention
Appellant's disclosure relates to a circuit for reading the resistance
state of a resistive switching device in an array of switching devices, and a
corresponding method for performing the read operation. Spec. ,r 8;
Abstract.
Independent claim 1 is illustrative of the claimed subject matter on
appeal and is reproduced below from the Claims Appendix to the Appeal
Brief:
1. A read circuit for sensing a resistance state of a resistive
switching device in a crosspoint array, comprising:
an equipotential preamplifier for connecting to a
selected column line of the resistive switching device in the
array to deliver a sense current while maintaining the selected
column line at a reference voltage near a biasing voltage
applied to unselected row lines of the array;
a reference current source for generating a sense
reference current;
a current comparator connected to evaluate the sense
current delivered by the equipotential preamplifier against the
sense reference current and generating an output signal
indicative of the resistance state of the resistive switching
device, wherein an output of the current comparator is
connected to an input equipotential preamplifier such that the
output signal of the current comparator is a feedback signal
during a setup stage of the read circuit and then indicates the
resistance state of the resistive switching device during a
subsequent reading stage of the read circuit; and
an analog-to-digital converter to converter an output of
the current comparator into a digital output.
Appeal Br. 27 (Claims App'x) (key disputed claim language italicized and
bolded).
2
Appeal2017-009711
Application 14/232,808
The References
The Examiner relies on the following prior art references as evidence
in rejecting the claims on appeal:
Miyanishi
Tran et al. ("Tran")
Pemer
Boemler
Yang et al. ("Yang")
us 5,369,614
US 6,597,598 B 1
US 2005/0195647 Al
US 7,242,332 B 1
US 2010/0141330 Al
The Rejections
Nov. 29, 1994
July 22, 2003
Sept. 8, 2005
July 10, 2007
June 10, 2010
On appeal, the Examiner maintains (Ans. 2) the following rejections:
1. Claims 16-18 rejected under 35 U.S.C. § I02(b) as being
anticipated by Pemer ("Rejection 1 "). Final Act. 2.
2. Claims 1 and 3-5 rejected under 35 U.S.C. § I03(a) as being
unpatentable over Pemer in view of Boemler ("Rejection 2"). Final Act. 4.
3. Claims 2, 6, and 9 rejected under 35 U.S.C. § I03(a) as being
unpatentable over Pemer in view of Boemler and further in view of
Miyanishi ("Rejection 3"). Final Act. 6.
4. Claims 7 and 20 rejected under 35 U.S.C. § I03(a) as being
unpatentable over Pemer ("Rejection 4"). Final Act. 8.
5. Claims 8 and 19 rejected under 35 U.S.C. § I03(a) as being
unpatentable over Pemer in view of Boemler and further in view of Yang
("Rejection 5"). Final Act. 9.
6. Claims 10-15 rejected under 35 U.S.C. § I03(a) as being
unpatentable over Pemer in view of Tran ("Rejection 6"). Final Act. 10.
3
Appeal2017-009711
Application 14/232,808
OPINION
Having considered the respective positions advanced by the Examiner
and Appellant in light of this appeal record, we affirm the Examiner's
rejections based on the fact-finding and reasoning set forth in the Answer
and Final Office Action, which we adopt as our own. We highlight and
address specific findings and arguments below.
Rejection 1
Appellant has withdrawn the appeal with respect to claims 16-18 and
the Examiner's rejection of those claims as being anticipated by Pemer
(Rejection 1, stated above). See Reply Br. 14 ("In light of the explanation
given in the Answer, Appellant withdraws the appeal as to claims 16-18.").
Accordingly, because the Examiner's Rejection 1 has not been
withdrawn and is not disputed by Appellant, we summarily affirm this
rejection. Cf Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed. Cir. 2008); Ex
parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) ("If an
appellant fails to present arguments on a particular issue - or, more
broadly, on a particular rejection-the Board will not, as a general matter,
unilaterally review those uncontested aspects of the rejection") ( cited with
approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011)).
Rejection 2
Claims 1 and 3-5
Appellant argues claims 1 and 3-5 as a group. Appeal Br. 10. We
select claim 1 as representative and claims 3-5 stand or fall with claim 1.
37 C.F.R. § 4I.37(c)(l)(iv).
The Examiner determines that the combination of Pemer and Boemler
suggests a read circuit satisfying all of the limitations of claim 1 and, thus,
4
Appeal2017-009711
Application 14/232,808
concludes that the combination would have rendered the claim obvious.
Final Act. 4---6 (citing Pemer, Figs. 2, 4, 5A, ,r,r 31-33, 46; Boemler, Fig. 1).
Appellant argues that the Examiner's rejection should be reversed
because Pemer does not teach or suggest an "equipotential preamplifier for
connecting to a selected column line of the resistive switching device in the
array to deliver a sense current while maintaining the selected column line
at a reference voltage near a biasing voltage applied to unselected row lines
of the array," as claimed. Appeal Br. 13; see also Reply Br. 4--7. In
particular, Appellant contends that, in contrast to the claimed invention, "the
sense current described by Pemer is drawn from ground, not delivered by
operation of an equipotential preamplifier," as required by the claim.
Appeal Br. 13 (citing Pemer ,r 41); see also Reply Br. 8. Appellant also
contends that it is select element 424 of Figure 4 of Pemer that delivers the
sense current to the selected column line in Pemer' s circuit, and not the
equipotential preamplifier 220 that delivers the sense current, as the
Examiner finds. Reply Br. 7.
We do not find Appellant's arguments persuasive of reversible error
in the Examiner based on the fact-finding and reasoning provided by the
Examiner at pages 4--5 of the Final Office Action and pages 2-3 of the
Answer, which we find is supported by a preponderance of the evidence and
based on sound technical reasoning. Pemer, Figs. 2, 4, 5A, ,r,r 31-33, 46.
In particular, as the Examiner finds (Final Act. 4), Figure 4 of Pemer
discloses a read circuit for sensing a resistance state of a resistive switching
device in a crosspoint array comprising an equipotential preamplifier 220
connecting to a selected column line 402 of the resistive switching device in
the array to deliver a sense current (!_sense). As the Examiner further finds
5
Appeal2017-009711
Application 14/232,808
(Ans. 3), because switch 420 of Figure 4 of Pemer is utilized by circuit 220
to pass or deliver the sense current, the !_sense current is delivered by
operation of the equipotential preamplifier 220 in the manner claimed.
Appellant's assertion that "the sense current described by Pemer is
drawn from ground" (Appeal Br. 13) is not persuasive because, as the
Examiner explains (Ans. 3), the sense current being drawn from ground is
not precluded by claim 1, Pemer' s prior art !_sense current falls within the
scope of claim 1.
Appellant's assertion that, in contrast to the claimed invention, "the
sense current described by Pemer is delivered to the selected column by
operation of a 'select element' 424" (Reply Br. 7) is not persuasive because
it is largely conclusory and Appellant does not provide an adequate technical
explanation or direct us to persuasive evidence in the record to support it.
Attorney argument is not evidence. In re De Blauwe, 736 F.2d 699, 705
(Fed. Cir. 1984).
Appellant further argues that the Examiner's rejection should be
reversed because the cited references neither nor suggest the recitation:
wherein an output of the current comparator is connected to an
input equipotential preamplifier such that the output signal of
the current comparator is a feedback signal during a setup stage
of the read circuit and then indicates the resistance state of the
resistive switching device during a subsequent reading stage of
the read circuit.
Appeal Br. 13. In particular, Appellant contends that, contrary to the
Examiner's finding, element 428 of Figure 4 of Pemer is not a "current
comparator," as recited in the claim, but that element 428 is merely a power
path. Id. at 13-14 (citing Pemer ,r 43). Appellant also contends that
6
Appeal2017-009711
Application 14/232,808
Boemler does not teach or suggest a current comparator as recited in claim
1. Id. at 14; see also Reply Br. 9.
We do not find Appellant's arguments in this regard persuasive of
reversible error in the Examiner's rejection based on the fact-finding and
reasoning provided by the Examiner at page 5 of the Final Office Action and
pages 3-5 of the Answer. In particular, Appellant's argument is misplaced
because it misconstrues the Examiner's rejection. As the Examiner explains
(Ans. 4) and contrary to what Appellant argues, the Examiner does not
identify element 428 of Figure 4 of Pemer as the claimed "current
comparator." Rather, as the Examiner finds (Ans. 4; Final Act. 5), it is the
combination of circuits 226 and 224 of Figure 4 of Pemer that corresponds
to the current comparator element of the claim. See Examiner's Markup
Pemer Figure 4 at page 4 of the Answer. Indeed, as the Examiner finds
(Ans. 5) and depicted in the Examiner's annotated version of Figure 4 of
Pemer, the current comparator comprises combined circuit 224/226 and not
merely element 428, as Appellant argues.
Appellant further argues that no combination of the cited references
teaches or suggests the recitation "an analog-to-digital converter to converter
an output of a current comparator into a digital output." Appeal Br. 16; see
also Reply Br. 9-10.
We do not find Appellant's argument persuasive of reversible error.
Based on the fact-finding and reasoning provided by the Examiner at pages
5-7 of the Final Office Action and pages 5-7 of the Answer, we concur with
the Examiner's finding that the cited art does teach or suggest the "analog-
to-digital converter" limitation of claim 1, and that the use of such device in
the manner claimed was known in the art. In particular, as the Examiner
7
Appeal2017-009711
Application 14/232,808
finds (Final Act. 5; Ans. 5-7), Figure 1 of Boemler discloses the use of an
analog-to-digital converter 175 to convert analog signals from device 162
into a digital output. Boemler, Fig. 1, 1 :45--48 ( disclosing that analog
signals output from element 162 "are then digitized by an analog-to-digital
converter 175").
Moreover, on the record before us, we concur with the Examiner's
reasoning and determination (Final Act. 5---6; Ans. 5-7) that because Pemer
discloses a circuit with sense operation that provides analog output (Pemer,
Fig. 4 (Dout)) and Boemler discloses an analog-to-converter to convert
analog signals to digital data (Boemler, Fig. 1, 1 :7-9, 1 :45--48), it would
have been obvious to one of ordinary skill in the art to have used Boemler' s
analog-to-digital converter with Pemer's circuit to convert the analog output
from Pemer' s current comparator to digital output, since using a
conventional analog-to-digital converter and circuitry was known in the art.
KSR Int'! Co. v. Teleflex, Inc., 550 U.S. 398,416 (2007) ("The combination
of familiar elements according to known methods is likely to be obvious
when it does no more than yield predictable results.").
Appellant fails to direct us to sufficient evidence or provide an
adequate technical explanation of why the Examiner's factual findings and
articulated reasoning for combining the teachings of the prior art to arrive at
the claimed invention lacks a rational underpinning or is otherwise based on
some other reversible error.
Appellant's arguments that "Boemler describes an imager" and the
reference "does not teach or suggest a current comparator as claimed that
outputs a signal" (Appeal Br. 16) are not persuasive of reversible error
because Appellant attacks the references individually rather than the
8
Appeal2017-009711
Application 14/232,808
combined teachings of the prior art as a whole. One cannot show non-
obviousness by attacking references individually where the rejection is based
on a combination of references. In re Keller, 642 F.2d 413,425 (CCPA
1981). Appellant's arguments are premised on what Appellant contends
Boemler teaches individually, and not the combined teachings of Pemer and
Boemler as a whole and what the combined teachings would have suggested
to one of ordinary skill in the art. Contrary to what Appellant's arguments
suggests, the Examiner relies on Pemer for disclosing the current comparator
element of claim 1 (Final Act. 5; Ans. 4), and not Boemler.
Claim 4
Appellant presents additional argument for the separate patentability
of claim 4. Appeal Br. 17-19. Claim 4 depends from claim 3 and further
recites:
wherein the setup components for setting the reference voltage
include a feedback switch for selectively connecting an input
of the equipotential preamplifier to an output of the current
comparator, and wherein the current comparator is connected
to evaluate an output current of the equipotential preamplifier
against the setup reference current.
Appeal Br. 28 (Claims App'x) (key disputed claim language italicized and
bolded).
Appellant argues that the Examiner rejection of claim 4 should be
reversed because Pemer does not teach or suggest the recitation "a feedback
switch for selectively connecting an input of the equipotential preamplifier
to an output of the current comparator." Appeal Br. 18-19. In particular,
Appellant contends that the Examiner "fails to demonstrate how or where
Pemer teaches or suggest[s] that the switch (450) connects 'an input of the
9
Appeal2017-009711
Application 14/232,808
equipotential preamplifier to an output of the current comparator,'" as
required by the claim. Id.
We do not find Appellant's argument persuasive of reversible error in
the Examiner's rejection based on the fact-finding and for the reasons
provided by the Examiner at pages 4---6 of the Final Office Action and pages
7-8 of the Answer. In particular, as the Examiner finds (Final Act. 6),
Pemer discloses setup components for setting the reference voltage,
including a feedback switch 450 for selectively connecting an input of the
equipotential amplifier 220 to an output of the current comparator 224/226
and wherein the current comparator 224/226 is connected to evaluate an
output current (!_sense) of the equipotential preamplifier 220 against the
setup reference current, as claimed. Pemer, Figs. 2, 4, ,r 32 ( disclosing that
the "control amplifier adjusts the first voltage VA to minimize the difference
between the reference current (I_ref) and the sense current (!_sense)"), ,r 33
( disclosing that a switching element permits the control amplifier to
"provide a data out signal in response to the feedback sense current of a
current flow through the selected resistive device"), ,r 46 ( disclosing
components that "effectively establish an equi-potential sense amplifier"),
,r 4 7 ( disclosing that "the first voltage VA is adjusted to provide the
initializing equi-potential setting"). See also the Examiner's Markup of
Pemer Figure 4 at page 8 of the Answer.
Appellant's contentions at pages 17-19 of the Appeal Brief are
conclusory and, without more, insufficient to rebut or otherwise establish
reversible error in the Examiner's factual findings and analysis in this
regard. De Blauwe, 736 F.2d at 705.
10
Appeal2017-009711
Application 14/232,808
Accordingly, we affirm the Examiner's rejection of claims 1 and 3-5
under 35 U.S.C. § 103(a) as obvious over the combination of Pemer and
Boemler.
Rejections 3, 4, and 5
Appellant argues that the Examiner's Rejections 3, 4, and 5 (stated
above) should be reversed for the same reasons previously discussed above
with respect to independent claim 1 (Rejection 2) and independent claim 16
(Rejection 1), respectively. Appeal Br. 19; see also Reply Br. 10. We do
not find Appellant's argument persuasive of reversible error for the same
reasons previously discussed above in affirming the Examiner's Rejections 1
and 2, respectively.
Accordingly, based on the findings and technical reasoning provided
by the Examiner and for principally the same reasons discussed above for
affirming the Examiner's Rejections 1 and 2, we affirm the Examiner's
Rejections 3, 4, and 5.
Rejection 6
Appellant argues claims 10-15 as a group. Appeal Br. 19-20. We
select claim 10 as representative and claims 11-15 stand or fall with claim
10. 37 C.F.R. § 4I.37(c)(l)(iv).
Claim 10 recites:
A method of reading a resistance state of a resistive
switching device in a crosspoint array, comprising:
outputting a feedback signal with a current comparator
connected to an equipotential preamplifier and a reference
current source;
connecting the equipotential preamplifier to a selected
column line of the resistive switching device in the array;
11
Appeal2017-009711
Application 14/232,808
generating, by the equipotential preamplifier, a sense
current flowing to the selected column line;
applying a fixed reference voltage to the equipotential
preamplifier during application of the sense current for
biasing the selected column line to the reference voltage
throughout application of the sense current;
with the current comparator, evaluating the sense current
against a sense reference current; and
generating a read output signal indicating the resistance
state of the resistive switching device.
Appeal Br. 29 (Claims App'x) (key disputed claim language italicized and
bolded).
The Examiner determines that the combination of Pemer and Tran
suggests a method satisfying all of the steps of claim 10 and, thus, concludes
that the combination would have rendered the claim obvious. Final Act. 10-
11 (citing Pemer, Figs. 2, 4, 5, ,r,r 32, 41--46, 48, 49; Tran, Fig. 3a).
Appellant argues that the Examiner's rejection of claim 10 should be
reversed because "Pemer does not teach or suggest that signal ( 428) is a
feedback signal" and that "the signal/power path ( 428) is output by a current
comparator." Appeal Br. 20.
Appellant further argues that the combination of Pemer and Tran does
not teach or suggest the step of "applying a fixed reference voltage to the
equipotential preamplifier during application of the sense current for biasing
the selected column line to the reference voltage throughout application of
the sense current." Reply Br. 12-14.
Appellant also argues that the one of ordinary skill in the art would
not have been led to combine the teachings of Pemer and Tran because
"Pemer teaches away from such a combination." Appeal Br. 21.
12
Appeal2017-009711
Application 14/232,808
Appellant contends that
the scope and content of the cited references does not include
the claimed subject matter, particularly, in the context of claim
10, 'applying a fixed reference voltage to the equipotential
preamplifier during application of the sense current for biasing
the selected column line to the reference voltage throughout
application of the sense current.'
Id. at 22. Appellant also contends that "the claimed subject matter provides
features and advantages not known or available in the cited references." Id.
at 22.
We do not find Appellant's arguments persuasive of reversible error
in the Examiner's rejection. On the record before us, we find that a
preponderance of the evidence and sound technical reasoning support the
Examiner's analysis and determination that the combination of Pemer and
Tran suggests a method satisfying all of the steps of claim 10, and the
Examiner's conclusion that the combination would have rendered the
claimed method obvious. Pemer, Figs. 2, 4, 5, ,r,r 32, 41--46, 48, 49; Tran,
Fig. 3a.
Appellant's arguments that "Pemer does not teach or suggest that
signal ( 428) is a feedback signal" and that "the signal/power path ( 428) is
output by a current comparator" (Appeal Br. 20) are not persuasive because,
as previously discussed above with respect to claim 1, they are based on
Appellant's misinterpretation of the Examiner's rejection and, in particular,
Appellant's misinterpretation as to which elements of Figure 4 of Pemer
correspond to the claimed current comparator. As the Examiner finds (Ans.
10-11) and depicted in the Examiner's annotated version of Figure 4 of
Pemer, the "feedback signal" is output from the current comparator 224/226
and feeds back to the equipotential preamplifier 220, which corresponds to
13
Appeal2017-009711
Application 14/232,808
the step of "outputting a feedback signal with a current comparator
connected to an equipotential preamplifier," as recited in the claim.
Contrary to what Appellant argues (Reply Br. 12-14), based on the
fact-finding and reasoning provided by the Examiner at pages 10-11 of the
Final Office Action and pages 11-13 of the Answer, we find that a
preponderance of the evidence supports the Examiner's determination that
the combination of Pemer and Tran does teach or suggest the "applying a
fixed reference voltage to the equipotential preamplifier" step of claim 10.
In particular, as the Examiner finds (Final Act. 11 ), Figure 3a of Tran
discloses a resistive memory device having an equipotential preamplifier 38
and comparator 30 to compare a sense current with a reference current to
determine the state of a memory cell and, thus, that it was known in the art
to apply a fixed reference voltage (VA) to the equipotential preamplifier 38
during application of the sense current. Tran, Fig. 3a, col. 3:49-55, 8:37-52.
As the Examiner further finds (Ans. 11-13), Pemer also teaches fixing
the reference voltage (VA), for example, in the circumstance where VA is
used as feedback input to the equipotential circuit 220 for equipotential
setting with VA'. See Pemer, Fig. 4, ,r 33 ("When the first voltage VA has
been set, a sample and hold circuit 230 maintains VA at the properly
adjusted level for the sense operation."), ,r 48 ("In an equi-potential setting,
the voltage VA' is held constant through the sense operation."), ,r 53 ("To
establish the equi-potential setting within crosspoint array 202, selected
column amplifier 416 provides a second voltage VA' to the selected column
402, block 504. ").
Appellant's arguments do not reveal reversible error in the
Examiner's factual findings and analysis in this regard.
14
Appeal2017-009711
Application 14/232,808
Appellant's teaching away argument is not persuasive of reversible
error because it is conclusory and Appellant does not direct us to sufficient
evidence in the record or provide an adequate technical explanation to
support it. De Blauwe, 736 F.2d at 699; see also In re Fulton, 391 F.3d
1195, 1201 (finding that there is no teaching away where the prior art's
disclosure "does not criticize, discredit, or otherwise discourage the solution
claimed"). We will not read into the references a teaching away where no
such language exists. Cf DyStar Textilfarben GmbH v. C.H. Patrick Co.,
464 F.3d 1356, 1364 (Fed. Cir. 2006).
Appellant's assertions regarding the "scope and content of the cited
references" and that "the claimed subject matter provides features and
advantages not known or available in the cited references" (Appeal Br. 22)
are equally unpersuasive because they, too, are conclusory and based on
attorney argument. De Blauwe, 736 F.2d at 699.
Accordingly, we affirm the Examiner's rejection of claims 10-15
under 35 U.S.C. § 103(a) as obvious over the combination of Pemer and
Tran.
DECISION
The Examiner's rejections of claims 1-20 are affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 3 7 C.F .R. § 1.13 6( a).
AFFIRMED
15