Appeal No. 2002-1282
Application No. 08/778,459
Hosp., 732 F.2d 1572, 1577, 221 USPO 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, 1040, 228 USPO
685, 687 (Fed. Cir. 1986); In re Piasecki, 745 F.2d 1468, 1472,
223 USPO 785, 788 (Fed. Cir. 1984); and In re Rinehart, 531 F.2d
1048, 1051, 189 USPO 143, 146-147 (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, regarding independent claim 28, the
examiner cites the abstract and column 2, lines 11-53, of Fulton
for the teaching of a utility for failure recovery in a computer
wherein the steps of registering a process with a recovery
service, detecting the status of the registered process, and
restarting the registered process when the detected status
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