Appeal No. 1996-1431
Application 08/087,140
to the Oshima memory circuit would have resulted in the claimed
invention [answer, pages 3-4].
Appellants argue that the combination of Oshima and
Arakawa does not teach or suggest that the gate oxide layer of a
peripheral transistor should be different from the gate oxide
layer of a high voltage transistor as recited in claim 76 [brief,
pages 9-10]. We agree with appellants.
The examiner’s position that each device on the
peripheral region of a memory circuit would be constructed
separately and have a different gate oxide layer than the other
devices on the peripheral region is based on pure speculation.
Oshima teaches a different oxide layer for only the memory cell
and a peripheral transistor. Arakawa offers no suggestion with
respect to the oxide layers of any of the components disclosed
therein. The only suggestion to make the oxide layer of a
peripheral transistor different from the oxide layer of a high
voltage transistor comes from appellants’ own disclosure.
The mere fact that the prior art may be modified in the
manner suggested by the examiner does not make the modification
obvious unless the prior art suggested the desirability of the
modification. In re Fritch, 972 F.2d 1260, 1266, 23 USPQ2d 1780,
1783-84 (Fed. Cir. 1992); In re Gordon, 733 F.2d 900, 902, 221
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