Appeal No. 2000-0660
Application No. 08/985,278
choices . . . [and it] appears that these changes produce no
functional differences and therefore would have been obvious."
See page 5, lines 7-12 of the answer.
Appellants argue that "the thickness of the tunnel film has
a very significant, unobvious functional effect . . . [wherein]
the thickness (T) of the tunnel directly effects the length of
time that the data is retained in the memory transistor." See
page 5, line 23 through page 6, line 3 of the reply brief.
Further, the Appellants argue that the data retention time
"increase continues until the thickness of the tunnel film
reaches approximately 3.5 nm. At this point, the data retention
time reaches a plateau. (See Fig 2.)" See page 6, lines 5-8 of
the reply brief. Lastly, the Appellants argue that "the Examiner
has failed to provide any motivation other than the bald
allegation of 'mere design choice' to explain why one of skill in
the art would have combined the unnecessarily thick tunnel film
taught by Young with the memory device taught by Hayashi." See
page 6, line 22 through page 7, line 1 of the reply brief.
The Federal Circuit states that, "[t]he 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,
1313
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