Appeal No. 1997-2297 Page 9
Application No. 08/337,636
§ 103 is, of course, impermissible. See, for example, W. L.
Gore and Assocs., Inc. v. Garlock, Inc., 721 F.2d 1540, 1553,
220 USPQ 303, 312-13 (Fed. Cir. 1983), cert. denied, 469 U.S.
851 (1984).
In responding to appellants' argument that Koker
discloses the constraints on relative sizing when the scaling
of different transistors differ by significant amounts, the
examiner asserts (answer, page 9) that "[w]hile the Examiner
agrees that Koker mentions difficulties with scaling
transistors, he does not say that it is impossible." The fact
that modifying the transistor scaling to the proportions
recited in claim 1 "is not impossible" is not a suggestion of
the specific claimed scaling wherein the inverter has a first
input gate size of a pull-down device that is at least five
times greater than the first gate size of the Schmitt trigger.
The examiner's conclusionary statement is not a substitute
for evidence, and does not meet the substantial evidence
standard necessary to support a conclusion of obviousness. It
follows that we cannot sustain the examiner's rejection of
claim 1. Accordingly, the rejection of claim 1 and dependent
claims 2, 6, and 9 under 35 U.S.C. § 103 is reversed.
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