Appeal No. 2001-0867
Application 09/016,571
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 appellants have been considered in this
decision. Arguments which appellants could have made but chose
not to make in the brief have not been considered and are deemed
to be waived by appellants [see 37 CFR § 1.192(a)].
We consider first the rejection of claims 1-3, 6-11, 14,
15, 17-21, 23 and 25-27 based on Li and the admitted prior art.
Each of the six independent claims on appeal is included within
this rejection. These six independent claims also stand or fall
together as a single group [brief, page 5]. This rejection is
set forth on pages 4-10 of the answer. Appellants argue that the
applied prior art does not teach calculating the claimed
predicted slope. Specifically, appellants argue that Li uses no
per-symbol calculations, a predicted rate-distortion slope is not
the same as the expectation of a ratio as taught by Li, and none
of the applied prior art teaches or suggests calculating a
predicted rate-distortion slope at all. Appellants also argue
that there is no motivation within the applied prior art for
combining the teachings as proposed by the examiner [brief, pages
12-18]. The examiner and appellants consider the exact same
-6-
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