Ex parte EVANS et al. - Page 6

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

               Nonetheless, as pointed out by appellants (Brief, pages                
          3-4) none of the references discuss the concentration of a                  
          dopant with an oxidation state greater than +4, and thus none               
          suggest a concentration sufficient to meet the claimed condition            
          of "to impede shifts in the resistance measured between the                 
          first and second contacts with time."  The examiner (Answer,                
          page 5) considers the limitation "to be merely functional,"                 
          asserting that "both the claimed structure and claimed materials            
          are obvious over the collective teachings of the prior art                  
          references to Shirasaki, Miller et al. and Swartz et al."                   
          However, the requirement that the concentration be sufficient to            
          impede shifts in resistance is not functional, but rather,                  
          defines the structure.  Thus, in the absence of a discussion as             
          to the concentration and/or the shifting of resistance in any of            
          the references, the examiner has failed to show the claimed                 
               The examiner relies (Answer, page 6) on the niobium in the             
          material Pb(Mg Nb )O  as providing a means for impeding shifts              
                        1/3 2/33                                                      
          in resistance.  However, as explained above, we find no                     
          motivation in the references for using materials with niobium in            
          the memory device.  Since the examiner has pointed to no                    

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