Ex Parte PINARBASI et al

Patent Trials and Appeals Board

Jun 3, 2019

15093367 - (D) (P.T.A.B. Jun. 3, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
15/093,367 04/07/2016
131001 7590 06/05/2019
Arnold & Porter Kaye Scholer LLP
Five Palo Alto Square, Suite 500
3000 El Camino Real
Palo Alto, CA 94306
FIRST NAMED INVENTOR
Mustafa PINARBASI
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.
1058410-00040 9045
EXAMINER
TRAN,DZUNG
ART UNIT PAPER NUMBER
2829
NOTIFICATION DATE DELIVERY MODE
06/05/2019 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):
jeffrey.miller@apks.com
sv.docketing@apks.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MUSTAFA PINARBASI AND BARTEK KARDASZ
Appeal2018-007254
Application 15/093,367
Technology Center 2800
Before KAREN M. HASTINGS, CHRISTOPHER C. KENNEDY, and
JANE INGLESE, Administrative Patent Judges.
HASTINGS, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 seeks our review under 35 U.S.C. § 134(a) of the
Examiner's decision rejecting claims 1-12 under 35 U.S.C. § 103 as
unpatentable over at least the basic combination of Applicant's Admitted
Prior Art (AAPA, Spec. Fig. l; ,r,r 5, 6) in view of Watts et al. (US
2012/0155156 Al, published Jun. 21, 2012) ("Watts") (Final Act 2; Appeal
Br. 2). 2 We have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellant is the applicant, Spin Transfer Technologies, Inc., which is also
stated to be the real party in interest (Appeal Br. 1 ).
2 The Examiner applies an additional prior art reference Yi et al. (US
2013/0270661 Al, published Oct. 17, 2013) ("Yi"), to reject dependent
claim 7 (see, e.g., Final Act. 8; see also, Appeal Br. 2). No discussion of
this rejection is necessary for disposition of this appeal.
Appeal2018-007254
Application 15/093,367
Independent claim 1 is illustrative of the subject matter on appeal
( emphasis added to highlight key limitation in dispute):
1. A memory array comprising:
at least one bit cell including:
an antiferromagnetic structure including a reference
layer;
a barrier layer disposed over the reference layer;
a free layer having a free layer magnetization direction
disposed on the barrier layer, the reference layer, the barrier
layer and the free layer forming a magnetic tunnel junction;
a nonmagnetic spacer layer disposed on the free layer;
a polarizer disposed on the magnetic spacer layer, the
polarizer layer having a magnetization direction that is
perpendicular to the free layer magnetization direction,
wherein the nonmagnetic spacer layer is disposed
between the free layer of the magnetic tunnel junction and the
polarizer, the nonmagnetic spacer layer comprising a thin layer
of magnesium oxide (MgO) on the free layer and a layer of
tantalum nitride (TaN) capping material on the thin layer of
MgO.
ANALYSIS
Upon consideration of the evidence on this record and each of
Appellant's contentions, we find that the preponderance of evidence
supports the Examiner's conclusion that the subject matter of Appellant's
claims is unpatentable over the applied prior art. We sustain the Examiner's
§ 103 rejection essentially for the reasons set out by the Examiner in the
Answer.
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Appeal2018-007254
Application 15/093,367
We add the following primarily for emphasis.
It has been established that "the [obviousness] analysis need not seek
out precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ." KSR Int 'l Co. v. Teleflex
Inc., 550 U.S. 398,418 (2007). Likewise, it is also well settled that a
reference stands for all of the specific teachings thereof as well as the
inferences one of ordinary skill in the art would have reasonably been
expected to draw therefrom. See In re Fritch, 972 F.2d 1260, 1264---65 (Fed.
Cir. 1992).
Appellant argues the Examiner erred in finding that Watts does not
teach that a TaN layer is "on the thin layer o(MgO" (Appeal Br. 4).
Appellant contends that there is no teaching or suggestion for the ordering of
the layers which is required by Appellant's claim 1 (Appeal Br. 7-8; Reply
Br. 3).
Appellant's arguments are not persuasive of reversible error. A prior
art reference, which discloses a multitude of effective compositions, does
not render any particular composition/structure less obvious. Merck & Co.,
Inc. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) (affirming
obviousness of composition selected from among more than 1200
compositions disclosed in patent). One of ordinary skill in the art would
have readily inferred and appreciated from the Watts' teaching of the list of
known materials to construct a bilayer or trilayer containing the recited
materials (i.e., MgO and TaN). 3 Cf In re Kerkhoven, 626 F.2d 846, 850,
(CCP A 1980) ("[i]t is [generally considered] prima facie obvious to combine
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Appeal2018-007254
Application 15/093,367
two compositions each of which is taught by the prior art to be useful for the
same purpose, in order to form a composition which is to be used for the
very same purpose."). Appellant has not offered adequate evidence or
persuasive technical reasoning to identify reversible error in the Examiner's
reliance on Watts (Ans. 3).
Appellant further argues that the Examiner erred in relying on Watts
for dependent claim 2 which requires "wherein the thin layer of magnesium
oxide comprises a thickness of approximately 0.3 nanometers" because the
asserted range is not encompassed by the claimed range (Appeal Br. 4, 9--
10). The Examiner relied upon Watts ,r 38 to teach a prior art range of from
zero (0) to 1.5 nm (Ans. 5). The Federal Circuit has consistently held that
even a slight overlap in ranges is enough to establish a prima facie case of
obviousness. See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003) ("In
cases involving overlapping ranges, we and our predecessor court have
consistently held that even a slight overlap in range establishes a prima facie
case of obviousness."). Contrary to Appellant's position, a plain reading of
paragraph 3 8 of Watts does suggest that the thickness of MgO may range
from over O to 1. 5 nm. 4 Appellant has not directed us to any adequate
evidence or persuasive technical reasoning to identify the recited thickness is
critical so as to show reversible error in the Examiner's reliance on Watts.
See In re Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990) (where the
difference between the claimed invention and the prior art is some range, the
4 One of ordinary skill would have readily appreciated that the layer must be
greater than zero in order to have a layer of MgO. "For example, the
perpendicular anisotropy increases as an MgO perpendicular capping layer
140 increases in thickness from zero to at least 1. 5 nm." Watts ,r 3 8. See
also Ans. 5.
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Appeal2018-007254
Application 15/093,367
applicant must show that the particular range is critical, generally by
showing that the claimed range achieves unexpected results relative to the
prior art range).
Thus, a preponderance of the evidence supports the Examiner's
position with respect to claims 1-12 (see generally Ans.).
Appellant has not presented any further substantive arguments for the
remaining dependent claims.
In summary, Appellant has not identified error in the Examiner's
position that the claimed subject matter is obvious within the meaning of
35 U.S.C. § 103. Accordingly, we affirm the Examiner's prior art rejections
of the claims under 35 U.S.C. § 103(a) for the reasons given above and
presented by the Examiner.
DECISION
The Examiner's§ 103 rejections are affirmed.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l ).
AFFIRMED
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