Appeal 2007-2532
Application 10/608,791
therefore consider only arguments for the patentability of claims 1 and 4, all
other arguments having been waived. 37 C.F.R. § 41.37(c)(vii) ("the failure
of appellant to separately argue claims . . . shall constitute a waiver of any
argument that the Board must consider the patentability of any grouped
claim separately.")
Jackson's arguments with respect to the rejection of claim 1 over
Krieger are essentially the same as those raised against the rejection over
Stasiak. (Br. at 12–13.) Here, where Krieger expressly describes memory
cells in which the resistance of memory elements changes the memory state
(Krieger at 2, ¶ 19; FF 20), we find that the weight of the evidence favoring
anticipation outweighs the evidence to the contrary. Jackson's argument that
Krieger fails to disclose a reversible memory state change (Br. at 13) is
misplaced, as there is no such limitation in claim 1 or in any of the
dependent claims. Patentability cannot be premised on a limitation that is
absent from the claimed subject matter. In re Self, 671 F.2d 1344, 1348, 213
USPQ 1, 5 (CCPA 1982). Accordingly, we hold that Jackson has failed to
prove reversible error by the Examiner.
Claim 4 depends on claim 1 via claims 2 and 3. Claim 2 requires that
the memory element have a first memory state having a high resistance and a
second memory state having a low resistance. Claim 3 requires that the
memory state transition be triggered by one or more listed agents. Claim 4
requires that the organic polymer layer contain dopants that are not active in
the first memory state and active in the second memory state. Jackson
argues that Figure 5 and the associated text, on which the Examiner relies,
neither describe nor suggest such a memory. Krieger shows in Figure 5 a
memory cell having an active layer 3 and a passive layer 5. (Krieger at 3,
17
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