Appeal No. 2006-2574
Application No. 10/331,706
Obviousness is then determined on the basis of the evidence as a
whole and the relative persuasiveness of the arguments. See Id.;
In re Hedges, 783 F.2d 1038, 1040, 228 USPQ 685, 687 (Fed. Cir.
1986); In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788
(Fed. Cir. 1984); and In re Rinehart, 531 F.2d 1048, 1051, 189
USPQ 143, 146-147 (CCPA 1976). Only those arguments actually
made by appellant have been considered in this decision.
Arguments which appellant could have made but chose not to make
in the brief have not been considered and are deemed to be waived
[see 37 CFR § 41.37(c)(1)(vii)(2004)].
Regarding the independent claims 36 and 45, the examiner
asserts that Kishinsky teaches the instant claimed subject
matter, either explicitly or inherently, but for “a presence
system that provides presence information, wherein that
information regards resource devices each capable of different
communications capabilities, and that presence information
includes an indication as to available capabilities for each of
the resources” (answer-page 5). The examiner then turns to
Zmolek for this deficiency, citing paragraphs 0004, 0013-0023,
0035, 0056, and 0069 of the reference.
The examiner concludes that it would have been obvious to
have enhanced the presence functionality of Kishinsky with the
presence system of Zmolek because of Zmolek’s teaching of
providing a better way of ascertaining the presence and
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