Appeal No. 1998-0694
Application No. 08/637,009
USPQ2d 1443, 1444 (Fed. Cir. 1992). If that burden is met,
the burden then shifts to the applicant 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 Id.; In re
Hedges, 783 F.2d 1038, 1039, 228 USPQ 685, 686 (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, 1052, 189
USPQ 143, 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 [see 37 CFR § 1.192(a)].
At this point we note that the parent application to
this application (07/552,190) was also before the Board of
Patent Appeals and Interferences (the Board). A rejection of
claims 22, 24-28 and 30-36 was before the Board based on the
same prior art applied in the rejection now before us. The
Board affirmed the examiner’s rejection of these claims in the
parent application [decision mailed December 13, 1995 in
Appeal No. 93-4100]. The reasons for rejection of the claims
in this application were said to be “as stated in the
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