Appeal No. 2000-1643
Application No. 08/897,900
complying with the burden of presenting a prima facie case of obviousness. Note In re
Oetiker, 977 F.2d 1443, 1445, 24 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)].
With respect to independent claim 22, the examiner cites Yarbrough as teaching
a system which provides a program divided into a plurality of segments wherein at least
some of the segments are combined and transmitted. The examiner acknowledges
that Yarbrough does not disclose that the segments are divided into fragments and
transmitted to the user as claimed. The examiner cites Gimple as teaching a CATV
system for dividing a segment (192 bits) into a plurality of fragments (24 frames) and
transmitted to users in time intervals (time slots). The examiner finds that it would have
been obvious to the artisan to divide the Yarbrough program segments into fragments
as taught by Gimple to control the ability of Yarbrough to more dynamically adapt to
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