Appeal 2007-1604
Application 09/966,064
at 1396 (quoting In re Kahn, 441 F.3d 977, 988, 78 USPQ2d 1329, 1336
(Fed. Cir. 2006)).
If the Examiner’s burden is met, the burden then shifts to the
Appellants to overcome the prima facie case with argument and/or evidence.
Obviousness is then determined on the basis of the evidence as a whole and
the relative persuasiveness of the arguments. See In re Oetiker, 977 F.2d
1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992).
The Examiner's rejection essentially finds that Alcorn teaches storing
a BIOS program and hardware drivers in a ROM device of a computer.
Although the Examiner notes that Alcorn does not disclose that these stored
drivers could be used for multiple different operating systems, the Examiner
cites Nakagiri for teaching that hardware drivers stored in ROM could be
used for multiple different operating systems. In view of Nakagiri, the
Examiner concludes that it would have been obvious to one of ordinary skill
in the art at the time of the invention to modify Alcorn to store in ROM
hardware drivers usable in multiple different operating systems to reduce
operating system installation time (Answer 3-4).
Appellants present two main arguments. First, Appellants contend
that combining Nakagiri with Alcorn in the manner proposed by the
Examiner would render Alcorn unsatisfactory for its intended purpose.
According to Appellants, coupling Alcorn’s casino game to an external
peripheral device that transfers drivers to the game “would seem to be a
security risk” since such a transfer “could bypass the security features of the
casino game” (Br. 15).
The Examiner responds that by modifying Alcorn to store hardware
drivers used for multiple operating systems in the ROM 14 as suggested by
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