DETAILED ACTION
Notice of AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
This action is responsive to the following communications: the Application filed January 17, 2025.
Claims 21-40 are pending. Claims 1-20 are canceled by preliminary amendments. Claims 21, 27 and 32 are independent.
Information Disclosure Statement
Acknowledgment is made of applicant’s Information Disclosure Statement (IDS) filed on January 17, 2025 and February 27, 2025. These IDSs have been considered.
Specification
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
The abstract of the disclosure is objected to because it contains a phrase that can be implied (i.e. “The present disclosure includes”). A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 21-22 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,817,164. Although the claims at issue are not identical, they are not patentably distinct from each other because: application claims 21-22 are anticipated by U.S. 11,817,164 claim 1.
Claims 21, 32 and 39-40 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 2 and 6-7 of U.S. Patent No. 11,264,112. Although the claims at issue are not identical, they are not patentably distinct from each other because: application claims 21, 32 and 39-40 are anticipated by U.S. 11,264,112 claims 2 and 6-7.
Claim 27 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 10,861,573. Although the claims at issue are not identical, they are not patentably distinct from each other because: application claim 27 is anticipated by U.S. 10,861,573 claim 1.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 21-24 and 32-40 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Mirichigni et al. (U.S. 2015/0348599; hereinafter “Mirichigni”).
Regarding independent claim 21, Mirichigni discloses an apparatus (Fig. 1), comprising a controller (Fig. 1: 108) with control circuitry (Fig. 1: 112) configured to:
received desired operational characteristics of a memory device (“amount of power received from host,” and “the present operation condition of memory,” see pages 2-3, par. 0027);
determine a trim setting configuration at least partially based on the desired operational characteristics of the memory device (“power availability information,” see pages 2-3, par. 0027); and
send the trim setting configuration via a wireless network (see page 2, par. 0020).
Regarding claim 22, Mirichigni discloses wherein the control circuitry is configured to send the trim setting configuration to the memory device via the wireless network (see page 2, par. 0020).
Regarding claim 23, Mirichigni discloses wherein the desired operational characteristics of the memory device are from a host (see page 2, par. 0020 and 0026).
Regarding claim 24, Mirichigni discloses wherein the trim setting configuration used by the memory device controls operational characteristics of the memory device such that the memory device performs with the desired operational characteristics or closer to the desired operational characteristics than prior operational characteristics of the memory device (see page 3, par. 0029).
Regarding independent claim 32, Mirichigni discloses an apparatus (Fig. 1), comprising a controller (Fig. 1: 108) with control circuitry (Fig. 1: 112) configured to:
receive desired operational characteristics of a memory device (“amount of power received from host,” and “the present operation condition of memory,” see pages 2-3, par. 0027) at a first location (see page 2, par. 0021 and par. 0026);
determine a trim setting configuration at least partially based on the desired operational characteristics of the memory device (“power availability information,” see pages 2-3, par. 0027); and
send the trim setting configuration to the memory device (see page 2, par. 0020) at a second location (see page 2, par. 0021 and par. 0026).
Regarding claim 33, Mirichigni discloses the limitations with respect to claim 32.
As discussed above, Mirichigni’s apparatus is substantially identical in structure to the claimed “apparatus,” where the differences reside only in the remaining limitations relating to function of “setting a number of programming signals in a programming operation, allowable programming operation rate, programming signal magnitude, and programming signal length to affect a programming speed of the memory device.”
The MPEP explains that examiners are to presume claimed functions are inherent when the prior art apparatus is substantially identical to the claimed apparatus. See esp. MPEP 2112.01(I) (Product and Apparatus Claims – When the Structure Recited in the Reference is Substantially Identically to that of the Claims, Claimed Properties or Functions Are Presumed to be Inherent). Mirichigni’s apparatus appears to be identical to applicant’s device, and thus the prior art apparatus is substantially identical to claimed apparatus, for which the claimed functions are presumed inherent. See MPEP 2112.01(I).
This presumption is rebuttable by applicant either (1) showing the prior art device and claimed device are not the same or (2) proving prior art device is incapable of performing the claimed functions. In re Ludtke, 441 F.2d 660, 664 (CCPA 1971); see MPEP 2112.01(I)(quoting In re Spada, 911 F.2d 705, 709 for “When the PTO shows a sound basis for believing that the products of the application and the prior art are the same, the applicant has the burden of showing that they are not.”). Applicant is reminded that argument of counsel is not evidence. MPEP 2145(I). Applicant is also reminded that claim limitations directed to the manner of operating do not distinguish an apparatus claim from the prior art apparatus. MPEP 2114(II) (“Manner of Operating the Device Does Not Differentiate Apparatus Claim from the Prior Art”).
Regarding claim 34, Mirichigni discloses the limitations with respect to claim 32.
As discussed above, Mirichigni’s apparatus is substantially identical in structure to the claimed “apparatus,” where the differences reside only in the remaining limitations relating to function of “setting a programming signal magnitude, a sensing signal magnitude, an erase signal magnitude, a programming signal length, an erase signal length, a sensing signal length, a number of sensing signals in a sensing operation, and a number of programming signals in a programming operation of the memory device to affect power consumption of the memory device.”
The MPEP explains that examiners are to presume claimed functions are inherent when the prior art apparatus is substantially identical to the claimed apparatus. See esp. MPEP 2112.01(I) (Product and Apparatus Claims – When the Structure Recited in the Reference is Substantially Identically to that of the Claims, Claimed Properties or Functions Are Presumed to be Inherent). Mirichigni’s apparatus appears to be identical to applicant’s device, and thus the prior art apparatus is substantially identical to claimed apparatus, for which the claimed functions are presumed inherent. See MPEP 2112.01(I).
This presumption is rebuttable by applicant either (1) showing the prior art device and claimed device are not the same or (2) proving prior art device is incapable of performing the claimed functions. In re Ludtke, 441 F.2d 660, 664 (CCPA 1971); see MPEP 2112.01(I)(quoting In re Spada, 911 F.2d 705, 709 for “When the PTO shows a sound basis for believing that the products of the application and the prior art are the same, the applicant has the burden of showing that they are not.”). Applicant is reminded that argument of counsel is not evidence. MPEP 2145(I). Applicant is also reminded that claim limitations directed to the manner of operating do not distinguish an apparatus claim from the prior art apparatus. MPEP 2114(II) (“Manner of Operating the Device Does Not Differentiate Apparatus Claim from the Prior Art”).
Regarding claim 35, Mirichigni discloses the limitations with respect to claim 32.
As discussed above, Mirichigni’s apparatus is substantially identical in structure to the claimed “apparatus,” where the differences reside only in the remaining limitations relating to function of “setting a number of sensing signals in a sensing operation, a sensing signal magnitude, and a sensing signal length to affect sensing speed of the memory device.”
The MPEP explains that examiners are to presume claimed functions are inherent when the prior art apparatus is substantially identical to the claimed apparatus. See esp. MPEP 2112.01(I) (Product and Apparatus Claims – When the Structure Recited in the Reference is Substantially Identically to that of the Claims, Claimed Properties or Functions Are Presumed to be Inherent). Mirichigni’s apparatus appears to be identical to applicant’s device, and thus the prior art apparatus is substantially identical to claimed apparatus, for which the claimed functions are presumed inherent. See MPEP 2112.01(I).
This presumption is rebuttable by applicant either (1) showing the prior art device and claimed device are not the same or (2) proving prior art device is incapable of performing the claimed functions. In re Ludtke, 441 F.2d 660, 664 (CCPA 1971); see MPEP 2112.01(I)(quoting In re Spada, 911 F.2d 705, 709 for “When the PTO shows a sound basis for believing that the products of the application and the prior art are the same, the applicant has the burden of showing that they are not.”). Applicant is reminded that argument of counsel is not evidence. MPEP 2145(I). Applicant is also reminded that claim limitations directed to the manner of operating do not distinguish an apparatus claim from the prior art apparatus. MPEP 2114(II) (“Manner of Operating the Device Does Not Differentiate Apparatus Claim from the Prior Art”).
Regarding claim 36, Mirichigni discloses the limitations with respect to claim 32.
As discussed above, Mirichigni’s apparatus is substantially identical in structure to the claimed “apparatus,” where the differences reside only in the remaining limitations relating to function of “setting a sensing speed to affect latency associated with performing read operations on the memory device.”
The MPEP explains that examiners are to presume claimed functions are inherent when the prior art apparatus is substantially identical to the claimed apparatus. See esp. MPEP 2112.01(I) (Product and Apparatus Claims – When the Structure Recited in the Reference is Substantially Identically to that of the Claims, Claimed Properties or Functions Are Presumed to be Inherent). Mirichigni’s apparatus appears to be identical to applicant’s device, and thus the prior art apparatus is substantially identical to claimed apparatus, for which the claimed functions are presumed inherent. See MPEP 2112.01(I).
This presumption is rebuttable by applicant either (1) showing the prior art device and claimed device are not the same or (2) proving prior art device is incapable of performing the claimed functions. In re Ludtke, 441 F.2d 660, 664 (CCPA 1971); see MPEP 2112.01(I)(quoting In re Spada, 911 F.2d 705, 709 for “When the PTO shows a sound basis for believing that the products of the application and the prior art are the same, the applicant has the burden of showing that they are not.”). Applicant is reminded that argument of counsel is not evidence. MPEP 2145(I). Applicant is also reminded that claim limitations directed to the manner of operating do not distinguish an apparatus claim from the prior art apparatus. MPEP 2114(II) (“Manner of Operating the Device Does Not Differentiate Apparatus Claim from the Prior Art”).
Regarding claim 37, Mirichigni discloses the limitations with respect to claim 32.
As discussed above, Mirichigni’s apparatus is substantially identical in structure to the claimed “apparatus,” where the differences reside only in the remaining limitations relating to function of “setting the trim setting configuration includes a programming signal magnitude, a sensing signal magnitude, an erase signal magnitude, a programming signal length, an erase signal length, a sensing signal length, a number of sensing signals in a sensing operation, and a number of programming signals in a programming operation to account for a temperature of the memory device.”
The MPEP explains that examiners are to presume claimed functions are inherent when the prior art apparatus is substantially identical to the claimed apparatus. See esp. MPEP 2112.01(I) (Product and Apparatus Claims – When the Structure Recited in the Reference is Substantially Identically to that of the Claims, Claimed Properties or Functions Are Presumed to be Inherent). Mirichigni’s apparatus appears to be identical to applicant’s device, and thus the prior art apparatus is substantially identical to claimed apparatus, for which the claimed functions are presumed inherent. See MPEP 2112.01(I).
This presumption is rebuttable by applicant either (1) showing the prior art device and claimed device are not the same or (2) proving prior art device is incapable of performing the claimed functions. In re Ludtke, 441 F.2d 660, 664 (CCPA 1971); see MPEP 2112.01(I)(quoting In re Spada, 911 F.2d 705, 709 for “When the PTO shows a sound basis for believing that the products of the application and the prior art are the same, the applicant has the burden of showing that they are not.”). Applicant is reminded that argument of counsel is not evidence. MPEP 2145(I). Applicant is also reminded that claim limitations directed to the manner of operating do not distinguish an apparatus claim from the prior art apparatus. MPEP 2114(II) (“Manner of Operating the Device Does Not Differentiate Apparatus Claim from the Prior Art”).
Regarding claim 38, Mirichigni discloses wherein the first location is different from the second location (see page 2, par. 0021 and par. 0026).
Regarding claim 39, Mirichigni discloses the limitations with respect to claim 32.
As discussed above, Mirichigni’s apparatus is substantially identical in structure to the claimed “apparatus,” where the differences reside only in the remaining limitations relating to function of “provides data retention characteristics for static data.”
The MPEP explains that examiners are to presume claimed functions are inherent when the prior art apparatus is substantially identical to the claimed apparatus. See esp. MPEP 2112.01(I) (Product and Apparatus Claims – When the Structure Recited in the Reference is Substantially Identically to that of the Claims, Claimed Properties or Functions Are Presumed to be Inherent). Mirichigni’s apparatus appears to be identical to applicant’s device, and thus the prior art apparatus is substantially identical to claimed apparatus, for which the claimed functions are presumed inherent. See MPEP 2112.01(I).
This presumption is rebuttable by applicant either (1) showing the prior art device and claimed device are not the same or (2) proving prior art device is incapable of performing the claimed functions. In re Ludtke, 441 F.2d 660, 664 (CCPA 1971); see MPEP 2112.01(I)(quoting In re Spada, 911 F.2d 705, 709 for “When the PTO shows a sound basis for believing that the products of the application and the prior art are the same, the applicant has the burden of showing that they are not.”). Applicant is reminded that argument of counsel is not evidence. MPEP 2145(I). Applicant is also reminded that claim limitations directed to the manner of operating do not distinguish an apparatus claim from the prior art apparatus. MPEP 2114(II) (“Manner of Operating the Device Does Not Differentiate Apparatus Claim from the Prior Art”).
Regarding claim 40, Mirichigni discloses the limitations with respect to claim 32.
As discussed above, Mirichigni’s apparatus is substantially identical in structure to the claimed “apparatus,” where the differences reside only in the remaining limitations relating to function of “provides data retention characteristics for dynamic data.”
The MPEP explains that examiners are to presume claimed functions are inherent when the prior art apparatus is substantially identical to the claimed apparatus. See esp. MPEP 2112.01(I) (Product and Apparatus Claims – When the Structure Recited in the Reference is Substantially Identically to that of the Claims, Claimed Properties or Functions Are Presumed to be Inherent). Mirichigni’s apparatus appears to be identical to applicant’s device, and thus the prior art apparatus is substantially identical to claimed apparatus, for which the claimed functions are presumed inherent. See MPEP 2112.01(I).
This presumption is rebuttable by applicant either (1) showing the prior art device and claimed device are not the same or (2) proving prior art device is incapable of performing the claimed functions. In re Ludtke, 441 F.2d 660, 664 (CCPA 1971); see MPEP 2112.01(I)(quoting In re Spada, 911 F.2d 705, 709 for “When the PTO shows a sound basis for believing that the products of the application and the prior art are the same, the applicant has the burden of showing that they are not.”). Applicant is reminded that argument of counsel is not evidence. MPEP 2145(I). Applicant is also reminded that claim limitations directed to the manner of operating do not distinguish an apparatus claim from the prior art apparatus. MPEP 2114(II) (“Manner of Operating the Device Does Not Differentiate Apparatus Claim from the Prior Art”).
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim 25 is rejected under 35 U.S.C. 103 as being unpatentable over Mirichigni et al. (U.S. 2015/0348599; hereinafter “Mirichigni”) in view of Yu et al. (U.S. 2014/0006688; hereinafter “Yu”).
Regarding claim 25, Mirichigni discloses the limitations with respect to claim 21.
However, Mirichigni is silent with respect to wherein the trim setting configuration includes setting a program signal magnitude and programming signal length to affect data retention characteristics in the memory device.
Similar to Mirichigni, Yu teaches a controller with control circuitry (Fig. 13: 192).
Furthermore, Yu teaches trim setting configuration includes setting a program signal magnitude and programming signal length to affect data retention characteristics in the memory device (see page 5, par. 0091).
Since Yu and Mirichigni are from the same field of endeavor, the teachings described by Yu would have been recognized in the pertinent art of Mirichigni.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to combine the teachings Yu with the teachings of Mirichigni for the purpose of obtain faster and program erase times, see Yu’s page 5, par. 0091.
Claim 26 is rejected under 35 U.S.C. 103 as being unpatentable over Mirichigni et al. (U.S. 2015/0348599; hereinafter “Mirichigni”) in view of Pangal et al. (U.S. 2014/0082460; hereinafter “Pangal”).
Regarding claim 26, Mirichigni discloses the limitations with respect to claim 21.
However, Mirichigni is silent with respect to the trim setting configuration includes setting an allowable programming operation rate, a programming signal magnitude, and a programming signal length to affect life span of the memory device.
Similar to Mirichigni, Pangal teaches an apparatus comprising a controller with control circuitry.
Furthermore, Pangal teaches trim setting configuration includes setting an allowable programming operation rate, a programming signal magnitude, and a programming signal length to affect life span of the memory device (see pages 1-2, par. 0014; page 2-3, par. 0020-0022 and 0028).
Since Pangal and Mirichigni are from the same field of endeavor, the teachings described by Pangal would have been recognized in the pertinent art of Mirichigni.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to combine the teachings Pangal with the teachings of Mirichigni for the purpose of improve reliability, see Pangal’s pages 1-2, par. 0014.
Claims 27-31 are rejected under 35 U.S.C. 103 as being unpatentable over Mirichigni et al. (U.S. 2015/0348599; hereinafter “Mirichigni”) in view of Chakra et al. (U.S. 2014/0164719; hereinafter “Chakra”).
Regarding independent claim 27, Mirichigni teaches an apparatus (Fig. 1), comprising a controller (Fig. 1: 108) with control circuitry (Fig. 1: 112) configured to:
receive desired operational characteristics of a memory device (“amount of power received from host,” and “the present operation condition of memory,” see pages 2-3, par. 0027);
determine a trim setting configuration at least partially based on the desired operational characteristics of the memory device (“power availability information,” see pages 2-3, par. 0027); and
send the trim setting configuration to the memory device (see page 2, par. 0020).
However, Mirichigni is silent with respect to the different geographic location.
Similar to Mirichigni, Chakra teaches an apparatus comprising a controller (see Abstract).
Furthermore, Chakra teaches receive desired operational characteristics of a memory device in a different geographic location, and send trim setting configuration to the memory device in the different geographic location (see pages 6-7, par. 0080-0084).
Since Chakra and Mirichigni are from the same field of endeavor, the teachings described by Chakra would have been recognized in the pertinent art of Mirichigni.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to combine the teachings Chakra with the teachings of Mirichigni for the purpose of managing memory of a device, see Chakra’s page 1, par. 0002.
Regarding claim 28, Mirichigni in combination with Chakra teaches the limitations with respect to claim 27.
As discussed above, Mirichigni’s apparatus in combination with Chakra is substantially identical in structure to the claimed “apparatus,” where the differences reside only in the remaining limitations relating to function of “setting a storage density of the memory device to affect a programming speed of the memory device, an amount of data stored on the memory device, and a power consumption of the memory device.”
The MPEP explains that examiners are to presume claimed functions are inherent when the prior art apparatus is substantially identical to the claimed apparatus. See esp. MPEP 2112.01(I) (Product and Apparatus Claims – When the Structure Recited in the Reference is Substantially Identically to that of the Claims, Claimed Properties or Functions Are Presumed to be Inherent). Mirichigni’s apparatus in combination with Chakra appears to be identical to applicant’s device, and thus the prior art apparatus is substantially identical to claimed apparatus, for which the claimed functions are presumed inherent. See MPEP 2112.01(I).
This presumption is rebuttable by applicant either (1) showing the prior art device and claimed device are not the same or (2) proving prior art device is incapable of performing the claimed functions. In re Ludtke, 441 F.2d 660, 664 (CCPA 1971); see MPEP 2112.01(I)(quoting In re Spada, 911 F.2d 705, 709 for “When the PTO shows a sound basis for believing that the products of the application and the prior art are the same, the applicant has the burden of showing that they are not.”). Applicant is reminded that argument of counsel is not evidence. MPEP 2145(I). Applicant is also reminded that claim limitations directed to the manner of operating do not distinguish an apparatus claim from the prior art apparatus. MPEP 2114(II) (“Manner of Operating the Device Does Not Differentiate Apparatus Claim from the Prior Art”).
Regarding claim 29, Mirichigni in combination with Chakra teaches the limitations with respect to claim 27.
As discussed above, Mirichigni’s apparatus in combination with Chakra is substantially identical in structure to the claimed “apparatus,” where the differences reside only in the remaining limitations relating to function of “setting a number of bits per memory cell and a number of programming signals in a programming operation to affect storage density of the memory device.”
The MPEP explains that examiners are to presume claimed functions are inherent when the prior art apparatus is substantially identical to the claimed apparatus. See esp. MPEP 2112.01(I) (Product and Apparatus Claims – When the Structure Recited in the Reference is Substantially Identically to that of the Claims, Claimed Properties or Functions Are Presumed to be Inherent). Mirichigni’s apparatus in combination with Chakra appears to be identical to applicant’s device, and thus the prior art apparatus is substantially identical to claimed apparatus, for which the claimed functions are presumed inherent. See MPEP 2112.01(I).
This presumption is rebuttable by applicant either (1) showing the prior art device and claimed device are not the same or (2) proving prior art device is incapable of performing the claimed functions. In re Ludtke, 441 F.2d 660, 664 (CCPA 1971); see MPEP 2112.01(I)(quoting In re Spada, 911 F.2d 705, 709 for “When the PTO shows a sound basis for believing that the products of the application and the prior art are the same, the applicant has the burden of showing that they are not.”). Applicant is reminded that argument of counsel is not evidence. MPEP 2145(I). Applicant is also reminded that claim limitations directed to the manner of operating do not distinguish an apparatus claim from the prior art apparatus. MPEP 2114(II) (“Manner of Operating the Device Does Not Differentiate Apparatus Claim from the Prior Art”).
Regarding claim 30, Mirichigni in combination with Chakra teaches the limitations with respect to claim 27.
As discussed above, Mirichigni’s apparatus in combination with Chakra is substantially identical in structure to the claimed “apparatus,” where the differences reside only in the remaining limitations relating to function of “programming signal magnitude, sensing signal magnitude, erase signal magnitude, programming signal length, erase signal length, sensing signal length, number of sensing signals in a sensing operation, number of programming signals in a programming operation, and a number of bits per memory cell of the memory device to affect disturb characteristics of the memory device.”
The MPEP explains that examiners are to presume claimed functions are inherent when the prior art apparatus is substantially identical to the claimed apparatus. See esp. MPEP 2112.01(I) (Product and Apparatus Claims – When the Structure Recited in the Reference is Substantially Identically to that of the Claims, Claimed Properties or Functions Are Presumed to be Inherent). Mirichigni’s apparatus in combination with Chakra appears to be identical to applicant’s device, and thus the prior art apparatus is substantially identical to claimed apparatus, for which the claimed functions are presumed inherent. See MPEP 2112.01(I).
This presumption is rebuttable by applicant either (1) showing the prior art device and claimed device are not the same or (2) proving prior art device is incapable of performing the claimed functions. In re Ludtke, 441 F.2d 660, 664 (CCPA 1971); see MPEP 2112.01(I)(quoting In re Spada, 911 F.2d 705, 709 for “When the PTO shows a sound basis for believing that the products of the application and the prior art are the same, the applicant has the burden of showing that they are not.”). Applicant is reminded that argument of counsel is not evidence. MPEP 2145(I). Applicant is also reminded that claim limitations directed to the manner of operating do not distinguish an apparatus claim from the prior art apparatus. MPEP 2114(II) (“Manner of Operating the Device Does Not Differentiate Apparatus Claim from the Prior Art”).
Regarding claim 31, Mirichigni in combination with Chakra teaches the limitations with respect to claim 27.
As discussed above, Mirichigni’s apparatus in combination with Chakra is substantially identical in structure to the claimed “apparatus,” where the differences reside only in the remaining limitations relating to function of “setting programming speed to affect data retention in the memory device, life span of the memory device, and power consumption of the memory device.”
The MPEP explains that examiners are to presume claimed functions are inherent when the prior art apparatus is substantially identical to the claimed apparatus. See esp. MPEP 2112.01(I) (Product and Apparatus Claims – When the Structure Recited in the Reference is Substantially Identically to that of the Claims, Claimed Properties or Functions Are Presumed to be Inherent). Mirichigni’s apparatus in combination with Chakra appears to be identical to applicant’s device, and thus the prior art apparatus is substantially identical to claimed apparatus, for which the claimed functions are presumed inherent. See MPEP 2112.01(I).
This presumption is rebuttable by applicant either (1) showing the prior art device and claimed device are not the same or (2) proving prior art device is incapable of performing the claimed functions. In re Ludtke, 441 F.2d 660, 664 (CCPA 1971); see MPEP 2112.01(I)(quoting In re Spada, 911 F.2d 705, 709 for “When the PTO shows a sound basis for believing that the products of the application and the prior art are the same, the applicant has the burden of showing that they are not.”). Applicant is reminded that argument of counsel is not evidence. MPEP 2145(I). Applicant is also reminded that claim limitations directed to the manner of operating do not distinguish an apparatus claim from the prior art apparatus. MPEP 2114(II) (“Manner of Operating the Device Does Not Differentiate Apparatus Claim from the Prior Art”).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALFREDO BERMUDEZ LOZADA whose telephone number is (571)272-0877. The examiner can normally be reached 7:00AM-3:30PM EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Alexander G Sofocleous can be reached at 571-272-0635. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Alfredo Bermudez Lozada/ Primary Examiner, Art Unit 2825
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