Appeal No. 1998-2709
Application No. 08/451,796
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)].
With respect to representative, independent claim 5, the
examiner notes that Albers teaches a circuit for combining the
outputs of two random number generators designed to produce
different outputs. The examiner finds that the recitation of
first and second types of random number generators would have
been obvious to the artisan in view of the teachings of Albers
[answer, pages 4-5].
Appellant argues that the two random number generators in
Albers are not of different types as required by claim 5.
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