Ex Parte Yang et al

Patent Trial and Appeal BoardJun 30, 2016

13256249 (P.T.A.B. Jun. 30, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/256,249 09/13/2011 Jianhua Yang 56436 7590 07/05/2016 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. 82837343 4791 EXAMINER TORNOW, MARK W ART UNIT PAPER NUMBER 2891 NOTIFICATION DATE DELIVERY MODE 07/05/2016 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 mkraft@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 JIANHUA YANG, SHIH-YUAN (SY) WANG, and R. STANLEY WILLIAMS Appeal2015-000901 Application 13/256,249 Technology Center 2800 Before MICHAEL P. COLAIANNI, WESLEY B. DERRICK, and JENNIFER R. GUPTA, Administrative Patent Judges. GUPTA, Administrative Patent Judge. DECISION ON APPEAL Appellants 1 appeal under 35 U.S.C. Â§ 134(a) from the Examiner's decision2 finally rejecting3 claims 1-20. We have jurisdiction under 35 U.S.C. Â§ 6(b). 1 Appellants identify the real party in interest as Hewlett-Packard Development Company, LP. Appeal Brief filed April 3, 2014 ("App. Br."), 2. 2 Final Office Action mailed November 26, 2013 ("Final Act."). 3 Appellants argue that the Final Action was made final prematurely. See App. Br. 11-14. But, as the Examiner correctly notes, a premature final rejection is a petitionable matter, and is not properly raised in an appeal to the Board. See Ans. 3; 37 C.F.R. 1.181; MPEP Â§ 1002.02(c). Accordingly, we do not address Appellants' arguments regarding improper finality. Appeal2015-000901 Application 13/256,249 We AFFIRM-IN-PART and enter a NEW GROUND OF REJECTION pursuant to 37 C.F.R. Â§ 41.50(b). The claims are directed to switchable junction with intrinsic diodes with different switching thresholds. Claims 1 and 11, reproduced below, are illustrative of the claims on appeal. 1. A switchable junction having intrinsic diodes with different switching thresholds, comprising: a first electrode formed of a first conductive material; a second electrode formed of a second conductive material; and a memristive matrix configured to form a first and a second electrical interface with the first and second electrodes to form a first rectifying diode interface with a first switching threshold and a second rectifying diode interface with a second switching threshold. 11. A switchable junction having at least two intrinsic diodes with different switching thresholds, comprising: a first electrode formed of a first conductive material; a second electrode formed of a second conductive material; a memristive matrix having mobile dopants; a first electrical interface between the memristive matrix and the first electrode operable to form a first rectifying diode interface with a first switching threshold; a second electrical interface between the memristive matrix and the second electrode operable to form a second rectifying diode interface with a second switching threshold that is greater than the first switching threshold; in which the second electrode is connected to a fixed voltage, with a selected voltage applied between the first electrode and the second electrode to distribute the mobile dopants to a desired location with respect to the first electrical interface to enable a resistance of the first electrical interface to be switched based on 2 Appeal2015-000901 Application 13/256,249 the location of the mobile dopants while maintaining the second rectifying diode interface to block a reverse current. REJECTIONS The following rejections4 are before us for review: 1. Claims 1-7, 9-13, and 15-20 are rejected under 35 U.S.C. Â§ 102(a) or (e) as anticipated by Kumar et al. (US 2008/0278990 Al, published Nov. 13, 2008); and 2. Claims 8 and 14 are rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Kumar further in view of Williams (US 2008/0079029 Al, published Apr. 3, 2008). ANALYSIS Claims 1-7, 9-11, 13, and 15-20 We sustain the Examiner'sÂ§ 102 rejection based on the findings of fact, conclusions of law, and rebuttals to arguments well- expressed by the Examiner in the Final Action and in the Answer. We provide additional comments below for emphasis. Appellants argue that Kumar fails to teach or suggest: (1) "a first rectifying diode interface with a first switching threshold" and "a second rectifying diode interface with a second switching threshold"; (2) "a memristive matrix" (claim 1) or a "memristive matrix having mobile dopants" (claims 11 and 16); and (3) a switchable junction having "intrinsic diodes with different switching thresholds." See App. Br. 14--29. 4 The prior pending rejection of claim 9 under 35 U.S.C. Â§ 112, second paragraph as indefinite (Final Act. 2) has been withdrawn (Ans. 2). 3 Appeal2015-000901 Application 13/256,249 Appellants' arguments are not persuasive. Regarding ( 1 ), Kumar teaches a resistive-switching memory element having two electrodes 20 and 24 formed of platinum and titanium nitride, respectively, and a metal oxide, for example, titanium-based oxides, forming an electrical interface between the electrodes. Kumar ,-r 40, 46; Fig. 2A. Kumar further teaches that the interface formed between either electrode 20 and 24 and metal oxide 22 (matrix) may be a Schottky contact or an ohmic contact (Kumar ,-r 46), which are the same as the interfaces described in Appellants' Specification (Spec. ,-r 6; Fig. 4). Because the electrodes, matrix (metal oxide), and interfaces formed between the electrodes and matrix in Kumar are the same as those described in Appellants' Specification, the Examiner reasonably finds that Kumar teaches "a first rectifying diode interface with a first switching threshold" and "second rectifying diode interface with a second switching threshold," as recited in claims 1, 11, and 16. See In re Best, 562 F.2d 1252, 1255 (CCPA 1977) ("Where, as here, the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product."). We are not persuaded that the Examiner's finding is erroneous. Regarding (2), the Examiner has established that the claimed "memristive matrix" and Kumar's metal oxide 22 reasonably appear to be identical, even though Kumar does not describe the metal oxide as a "memristive matrix." See Final Act. 4 (citing Fig. 2A, ,-r 40); see 4 Appeal2015-000901 Application 13/256,249 also Ans. 4--5 (citing Kumar if 42). Appellants have not provided any persuasive argument based on sufficient objective evidence to rebut the Examiner's finding that Kumar's metal oxide is a memristive matrix. Regarding (3), the Examiner and Appellants disagree as to whether the preamble of claims 1, 11, and 16 is a limitation of each claim. Whether to treat a preamble term as a claim limitation is "determined on the facts of each case in light of the claim as a whole and the invention described in the patent." Storage Tech. Corp. v. Cisco Sys., Inc., 329 F.3d 823, 831 (Fed. Cir. 2003). The body of claims 1, 11, and 16 completely describe the structure of the switchable junction; the disputed preamble phrase (e.g., a switchable junction having "intrinsic diodes with different switching thresholds") does not recite essential structure, but merely states a purpose or intended use of the structure. Accordingly, we do not find the Examiner erred by not treating the preamble of claims 1, 11, or 16 as limiting. Claim 12 Claim 12 depends from claim 11, and requires that the fixed voltage is a ground. Appellants argue that Kumar "is silent regarding fixing any end of an electrical device to ground." App. Br. 30. We are persuaded by Appellants' argument. The Examiner has failed to identify any description in Kumar that teaches an electrode connected to a ground. Thus, there is insufficient evidentiary support for the Examiner's finding that all the claimed limitations of claim 12 are met by Kumar. Accordingly, we do not sustain the rejection. 5 Appeal2015-000901 Application 13/256,249 Claims 8 and 14 With respect to claims 8 and 14, Appellants rely upon the arguments advanced with respect to independent claims 1 and 11, respectively. App. Br. 31. Since we found Appellants' arguments unpersuasive with respect to independent claims 1 and 11, we find the same arguments to be unpersuasive with respect to dependent claims 8 and 14. Accordingly, we sustain the rejection. New ground of rejection Pursuant to 37 C.F.R. Â§ 41.50(b), we enter a new ground of rejection for claim 12 under 35 U.S.C. Â§ 103(a) as unpatentable over Kumar and Williams. We adopt the Examiner's findings regarding the teachings of Kumar. Kumar teaches a resistive-switching memory element having a metal oxide 22 (e.g., titanium-based) sandwiched between two electrodes 20 and 24. Kumar 111129, 40; Fig. 2A. Kumar teaches applying a fixed voltage to the electrodes during read operation, but does not teach the fixed voltage is a ground. See id. i-f 28. Williams teaches an electrically actuated switch having a switching material (308, 310) (e.g., Ti02 having a concentration of oxygen vacancies) sandwiched between two electrodes (102, 104). Williams i-fi-13, 58, 61; Fig. 6A. Williams teaches that when one of the electrodes (e.g., cathode) is grounded and a positive potential is applied to the other electrode (e.g., anode), positively charged oxygen vacancies in the switching material will drift toward the grounded electrode (cathode). Id. i-f 62. It would have been obvious to modify Kumar, in view of Williams, to produce a switching memory element having one electrode connected to a ground in order to 6 Appeal2015-000901 Application 13/256,249 enable the oxygen vacancies (mobile dopants) in the metal oxide (memrisitive matrix) to drift toward the grounded electrode without the expenditure of a large amount of energy. See id. DECISION We AFFIRM the Examiner rejection of claims 1-7, 9-11, 13, and 15- 20 under 35 U.S.C. Â§ 102(e) as anticipated by Kumar. We REVERSE the Examiner's rejection of claim 12 under 35 U.S.C. Â§ 102(e) as anticipated by Kumar. We AFFIRM the Examiner's rejection of claims 8 and 14 under 35 U.S.C. Â§ 103(a) as unpatentable over Kumar and Williams. We enter a NEW GROUND OF REJECTION, pursuant to 37 C.F.R. Â§ 41.50(b), rejecting claim 12 under 35 U.S.C. Â§ 103(a) as unpatentable over Kumar and Williams. Section 41.50(b) provides "[a] new ground of rejection pursuant to this paragraph shall not be considered final for judicial review." Section 41.50(b) also provides: When the Board enters such a non-final decision, the Appellant, within two months from the date of the decision, must exercise one of the following two options with respect to the new ground of rejection to avoid termination of the appeal as to the rejected claims: (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new Evidence relating to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the prosecution will be remanded to the examiner. The new ground of rejection is binding upon the examiner unless an amendment or new Evidence not previously of Record is made which, in the opinion of the examiner, overcomes the new ground of rejection 7 Appeal2015-000901 Application 13/256,249 designated in the decision. Should the examiner reject the claims, appellant may again appeal to the Board pursuant to this subpart. (2) Request rehearing. Request that the proceeding be reheard under Â§ 41.52 by the Board upon the same Record. The request for rehearing must address any new ground of rejection and state with particularity the points believed to have been misapprehended or overlooked in entering the new ground of rejection and also state all other grounds upon which rehearing is sought. Further guidance on responding to a new ground of rejection can be found in the Manual of Patent Examining ProcedureÂ§ 1214.01. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED-IN-PART; 37 C.F.R. Â§ 41.50(b) 8