Appeal No. 2001-2573
Application No. 09/070,486
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)].
We consider first the rejection of claims 1-6, 8-10 and 14-
19 based on the teachings of Kobayashi and Shimura. With respect
to independent claims 1, 9 and 14, the examiner essentially finds
that Kobayashi teaches the claimed invention except that Kobayashi
does not teach a log-transformed histogram or the determination of
an upper limit value based on the log-transformed histogram. The
examiner cites Shimura as teaching a system similar to the system
of Kobayashi except that Shimura teaches using log-transformed
histograms. The examiner finds that it would have been obvious to
the artisan to include the Shimura method in the Kobayashi process
in order to produce images of better quality [answer, pages 3-7].
Appellant argues that the examiner has failed to establish
a prima facie case of obviousness because the examiner has not
pointed to anything within the applied prior art to show the
desirability of making the combination proposed by the examiner.
Specifically, appellant argues that Kobayashi does not suggest the
use of log-transformed histograms, while Shimura teaches
conversions based only on log-transformed histograms. Appellant
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