Ex parte EVANS et al. - Page 3




          Appeal No. 1997-3915                                                        
          Application No. 08/640,572                                                  


               (Japanese Kokai patent publication)                                    
               Claim 1 stands rejected under 35 U.S.C.  103 as being                 
          unpatentable over Shirasaki in view of Miller and Swartz.2                  
               Reference is made to the Examiner's Answer (Paper No. 10,              
          mailed May 9, 1997) for the examiner's complete reasoning in                
          support of the rejection, and to appellants' Brief (Paper No. 9,            
          filed March 17, 1997) for appellants' arguments thereagainst.               
                                        OPINION                                       
               We have carefully considered the claims, the applied prior             
          art references, and the respective positions articulated by                 
          appellants and the examiner.  As a consequence of our review, we            
          will reverse the obviousness rejection of claim 1.                          
               Shirasaki discloses (translation, page 6) a ferroelectric              
          FET memory element, with a ferroelectric layer of Ym O , E M O ,n 3  r n 3              
          H M O , T M O , YbM O , or L M O .  Miller suggests thaton 3  m n 3    n 3    u n 3                                               
          ferroelectric thin films with a perovskite structure having a               
          chemical formula of ABO  where B has an oxidation state of +5               
                                 3                                                    


               We note that a rejection of claim 1 made in the Final Rejection (page2                                                                     
          2) under the judicially created doctrine of double patenting over claims 1  
          through 3 of U.S. Patent No. 5,578,846 was not repeated nor explicitly      
          withdrawn in the Examiner's Answer.  We consider the rejection to have been 
          withdrawn without prejudice, presumably because of appellants' offer (Brief,
          pages 4-5) to file a terminal disclaimer.                                   
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