Appeal No. 2001-0848
Application 09/144,414
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 and are deemed to be waived
by appellant [see 37 CFR § 1.192(a)].
We consider first the rejection of claims 1, 3, 4, 6, 8,
10, 11 and 13 based on the teachings of Mahany (and the TCP/IP
Standards). With respect to independent claims 1 and 8, the
examiner indicates how he has determined these claims to be
obvious over the applied prior art [answer, pages 6-8]. The
examiner’s finding of obviousness is based inter alia on a
determination that Mahany inherently provides the step of
determining a target transmission reliability for sending
messages as well as a taking of Official Notice that transmitting
messages for which an acknowledgment is expected in a segmented
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