Appeal No. 2001-2416
Application No. 08/843,978
929, 933 (Fed. Cir. 1984). These showings by the examiner are an essential part of
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 and are
deemed to be waived [see 37 CFR 1.192 (a)].
In the instant case, the examiner points to Figures 5, 6, 12 and 13 of Kii for a
disclosure of the claimed cathode ray tube, deflection circuit and circuit for generating a
spot indication signal, the examiner finding that Kii’s counter 8 corresponds to the
claimed circuit for generating a spot position indication signal because the counter 8
provides an address that corresponds to a RAM memory location of the stored
correction waveform data for the adjustment points in the vicinity of the image screen.
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