Ex Parte Rijks et al

Patent Trial and Appeal BoardOct 31, 2012

10537591 (P.T.A.B. Oct. 31, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE _____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD _____________ Ex parte THEODOOR GERTRUDIS SILVESTER RIJKS, MARCO MATTERS, and JOSEF THOMAS MARTINUS VAN BEEK _____________ Appeal 2010-005252 Application 10/537,591 Technology Center 2800 ______________ Before MAHSHID D. SAADAT, JASON V. MORGAN, and BRYAN F. MOORE, Administrative Patent Judges. MOORE, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-005252 Application 10/537,591 2 This is a decision on appeal under 35 U.S.C. § 134(a) of the Final Rejection of claims 1-9 and 11-20. App. Br. 2. Claim 10 is canceled. Id. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. INVENTION The invention is directed to an electronic device comprising an array of micro-electro-mechanical-system (MEMS) elements, said array providing a plurality of states at its output. See Spec., p.1, ll. 1- 3. Claims 1 is representative of the invention and reproduced below: 1. An electronic device comprising: an array of micro-electromechanical system (MEMS) elements including at least first and second MEMS elements, said array being connected by an input and an output and providing a plurality of states at its output, wherein each of the first and second MEMS elements has a characteristic hysteresis curve, a first state and a second state, and wherein a transition from the first to the second state is effected by an opening voltage, and a transition from the second to the first state is effected by a closing voltage, the opening voltage and closing voltage of the first MEMS element being different from the opening voltage and closing voltage of the second MEMS element, and wherein the characteristic hysteresis curves differing from the first MEMS element to the second MEMS element are designed such that the hysteresis curve having a smaller width Appeal 2010-005252 Application 10/537,591 3 is located fully within the width of the hysteresis curve having the larger width, and wherein the input is adapted for applying a single control voltage that is to be applied to all the MEMS elements whereby the various states of the array are to be obtained by varying the single control voltage. REFERENCES Zavracky US 4,674,180 Jun. 23, 1987 Sugahara US 6,618,034 B1 Sep. 9, 2003 Miles ‘562 US 6,674,562 B1 Jan. 6, 2004 Miles ‘532 US 2004/005832 A1 Mar. 25, 2004 REJECTION AT ISSUE Claims 1-4, 6-9 and 11-20 are rejected under 35 U.S.C. § 102(b) as being anticipated by Zavracky. Ans. 3-8. Claims 1-4, 6-9 and 11-20 are also rejected as unpatentable under 35 U.S.C. § 103(a) as being obvious over the combination of Miles ‘532 and Sugahara. Ans. 8-13.1 Claim 5 is rejected as unpatentable under 35 U.S.C. § 103(a) as being obvious over the combination of Zavracky and Miles ’562. Claim 5 is alternatively rejected as unpatentable under 35 U.S.C. § 103(a) as being obvious over the combination of Miles ‘532, Sugahara, and Miles ’562. Ans. 13. 1 The statement of the rejection omits claim 11, however this is taken as a typographical error as claim 11 is included in the rejection analysis itself. Ans. 8, 12. Appeal 2010-005252 Application 10/537,591 4 ISSUES 1. Did the Examiner err in finding that Miles ’532 and Sugahara collectively teach the following limitation: “wherein the input is adapted for applying a single control voltage that is to be applied to all the MEMS elements whereby the various states of the array are to be obtained by varying the single control voltage” (independent claim 1); 2. Did the Examiner err in finding that Miles ’532 teaches the following limitation: “the hysteresis curve having a smaller width is located fully within the width of the hysteresis curve having the larger width” (independent claim 1); 3. Did the Examiner err in finding that Miles ’532 teaches the following limitations: “the array includes at least three MEMS elements each having a characteristic hysteresis curve” and “the corresponding opening and closing voltages differ from one MEMS element to another MEMS element” (claim 2); 4. Did the Examiner err in finding that Miles ’532 teaches the following limitation: “wherein the characteristic hysteresis curves of the first and second MEMS elements are centered around a common centerline in the operational diagram” (claim 11); and 5. Did the Examiner err in finding that Miles ’532 teaches the following limitation: “wherein application of the control voltage to the single common input can cause the variable Appeal 2010-005252 Application 10/537,591 5 capacitor to take on at least four different capacitance values” (claim 19)? ANALYSIS 35 U.S.C. § 103(a) - Miles ’532 and Sugahara Claims 1-4, 6-9 and 11-20 Claim 1 Appellants present arguments with respect to claims 1, 2, 11, and 19. Claim 1 recites “wherein the input is adapted for applying a single control voltage that is to be applied to all the MEMS elements whereby the various states of the array are to be obtained by varying the single control voltage.” Appellants argue that Miles ’532 does not disclose this limitation. App. Br. 14. Specifically, Appellants argue that “Miles ’532 does not teach or disclose that various states of the array are to be obtained by varying the single control voltage because the different hysteresis curves obtained due to variations are not predictable and may not be distinguishable.” Id. We are not persuaded by this argument. Appellants’ arguments focus on Figure 3, but Miles ’532 teaches that Figure 3 is exemplary of the problem the reference purports to solve. See Miles ’532 [0026]. Specifically Miles ’532 recites that “[i]n accordance with embodiments of the present invention, the electromechanical behavior of the transparent layer 12 is altered by adding a further layer to the thin film stack. This further layer at least minimizes or compensates for the effect of transparent layer 12 on the hysteresis behavior of the reflective layer 14.” Id. Thus, Figure 3 is exemplary of the unaltered behavior of the invention. Appeal 2010-005252 Application 10/537,591 6 Figures 5 and 7 of Miles ’532 show that, as altered in accordance with the invention, a single control voltage, Vbias, is applied to the MEMS element. See Ans. 23. We agree with the Examiner that Miles ’532 teaches applying a single control voltage that is to be applied to a MEMS element. Id. The Examiner relies on Sugahara to teach that the single control voltage is applied to all MEMS elements. Ans. 10. Appellants argue that Miles ’532 does not disclose that portion of the above-mentioned limitation. App. Br. 13. We disagree. The Examiner finds that “Sugahara discloses an electronic device comprising an array of MEMS elements 230a where a single control voltage is applied to all the MEMS elements (see a single voltage V1 is applied to top array, V2 to the next array).” Ans. 18-19. We find that there is ample support for the Examiner’s finding. Thus, for the reasons stated above, we agree with the Examiner that Miles ’532 and Sugahara collectively teach “wherein the input is adapted for applying a single control voltage that is to be applied to all the MEMS elements whereby the various states of the array are to be obtained by varying the single control voltage.” Id. Claim 1 also recites “the hysteresis curve having a smaller width is located fully within the width of the hysteresis curve having the larger width.” Appellants argue that Miles ’532 does not disclose a MEMS device with different widths because Miles ’532 does not disclose variations in a device with hysteresis. App. Br. 15. Again, Appellants’ argument focuses on Figure 3, but Miles ’532 teaches that Figure 3 is exemplary of the problem the reference purports to solve. See Miles ’532 [0026]. Figures 5 and 7 of Miles ’532 show MEMS devices that exhibit hysteresis. Therefore, Appeal 2010-005252 Application 10/537,591 7 we agree with the Examiner that Miles ’532 teaches MEMS devices with different widths. Ans. 19. Appellants further argue that Miles ’532 does not disclose a MEMS device such that a hysteresis curve of a MEMS element is fully located within another hysteresis curve of another MEMS element because these variations (shown in Miles ’532) are not predictable. App. Br. 15. Again, Appellants’ argument focuses on Figure 3, but Miles ’532 teaches that figure 3 is exemplary of the problem the reference purports to solve. See Miles ’532 [0026]. The Examiner finds that [t]he hysteresis curve 50 of Figure 5 has a hysteresis width of 2.8 volts (Vclose or Vactuation of 7.8 volts and Vopen or Vrelease of 5.0 volts), and the hysteresis curve 80 of Figure 7 having a wider hysteresis width 4.5 volts (Vclose or Vactuation of 9 volts and Vopen or Vrelease of 4.5 volts), and curve 8 fully encloses curve 50. Ans. 20. We find that there is ample support for the Examiner’s finding. Therefore, we agree with the Examiner’s conclusion that Miles ’532 teaches “the hysteresis curve having a smaller width is located fully within the width of the hysteresis curve having the larger width.” Id. Claim 2 Claim 2 recites “the array includes at least three MEMS elements each having a characteristic hysteresis curve” and “the corresponding opening and closing voltages differ from one MEMS element to another MEMS element.” Appellants argue that due to unpredictable variations in Miles ’532 nothing in Miles ’532 definitely discloses that the opening and closing voltages are different from one MEMS element to the next. App. Br. 16. Appeal 2010-005252 Application 10/537,591 8 We addressed this issue above and, as noted above, are not persuaded by this argument. Claim 2 also recites three MEMS elements. Appellants again argue that the unpredictable variations in Miles ’532 would prevent applying a single control voltage to all three MEMS elements because “the possibility of using a single control diminishes.” App. Br. 17. We find this argument is unsupported by evidence and is essentially the same as the one we addressed above and thus, for the reasons stated above, we are not persuaded by this argument. Thus we find that Miles ’532 and Sugahara collectively teach “the array includes at least three MEMS elements each having a characteristic hysteresis curve,” “the corresponding opening and closing voltages differ from one MEMS element to another MEMS element,” and “wherein the input is adapted for applying a single control voltage that is to be applied to all [three of] the MEMS elements whereby the various states of the array are to be obtained by varying the single control voltage.” Claim 11 Claim 11 recites “wherein the characteristic hysteresis curves of the first and second MEMS elements are centered around a common centerline in the operational diagram.” Appellants argue that Miles ’532 does not disclose this limitation. We agree with the Examiner’s stated rationale that it would have been obvious to one of ordinary skill in the art at the time of the invention to center the hysteresis curves around a common centerline to more easily apply the range of bias voltage. Ans. 21. Appeal 2010-005252 Application 10/537,591 9 Claim 19 Claim 19 recites “wherein application of the control voltage to the single common input can cause the variable capacitor to take on at least four different capacitance values.” Appellants again argue that the unpredictable variations in Miles ’532 would, in this case, prevent having more than two state transitions which represent the opening and closing voltages of the MEMS elements. App. Br. 18. We find this argument is essentially the same as the one we addressed above and thus we are likewise not persuaded by this argument. We also agree with the Examiner that one of ordinary skill in the art at the time of the invention would recognize that [when] each of the MEMS capacitor of the electronic device ha[s] characteristic hysteresis curves, with two states open or closed, [and] can cause the variable capacitor to take a plurality of states, for example, when two capacitors are present, each having open and closed can cause at least four different states (00, 01, 10, 11). Ans. 22. Therefore, we agree with the Examiner that Miles ’532 suggests “wherein application of the control voltage to the single common input can cause the variable capacitor to take on at least four different capacitance values.” Id. SUMMARY Claims 3, 4, 6-8, 12, 14-18, and 20 are not argued separately and therefore stand or fall with claim 1, 2, 9, 11, and 19. Appellants argue claim 13 is patentable for the same reasons as claim 1, therefore claim 13 stands or falls with claim 1. See App. Br. 18-19. Thus, for the reasons stated above, we find no error in the Examiner’s decision to reject claims 1-4, 6-9, and 11- Appeal 2010-005252 Application 10/537,591 10 20 under 35 U.S.C. § 103(a) as being unpatentable over Miles ’532 and Sugahara. 35 U.S.C. § 103(a) – Miles ’532, Sugahara, and Miles ‘562 Claim 5 Appellants do not present substantive arguments regarding claim 5, and therefore this claim falls with claim 1. See App. Br. 19. 35 U.S.C. § 102(b) – Zavracky Claims 1-4, 6-9 and 11-20 As noted above, we affirm the Examiner’s decision to reject claims 1- 4, 6-9 and 11-20 as unpatentable under 35 U.S.C. § 103(a) as being obvious over Miles ’532 and Sugahara. Therefore, we decline to reach the cumulative rejection of claims 1-4, 6-9 and 11-20 under 35 U.S.C. § 102(b) as being anticipated by Zavracky. 35 U.S.C. § 103(a) – Zavracky and Miles ’562 Claim 5 As noted above, we affirm the Examiner’s decision to reject claims 5 under 35 U.S.C. § 103(a) as being unpatentable over Miles ’532, Sugahara, and Miles ’562. Therefore, we decline to reach the cumulative rejection of claim 5 under 35 U.S.C. § 103(a) as being unpatentable over Zavracky and Miles ’562. Appeal 2010-005252 Application 10/537,591 11 DECISION The Examiner’s decision to reject claims 1-9 and 11-20 is affirmed. We do not reach the merits of the Examiner’s decision to reject claims 1-4, 6-9 and 11-20 as anticipated by Zavracky. We also do not reach the merits of the Examiner’s decision to reject claims 5 as unpatentable as being obvious over the combination of Zavracky and Miles ’562. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED msc