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
structure.
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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