Appeal No. 2003-0212 Page 7
Application No. 09/089,053
(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 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)].
Representative claim 7 differs from claim 1 in that the
threshold height is recited as varying in accordance with a
radial position over the disk. The examiner’s rejection is again
incorporated into the answer from the final rejection. This
rejection finds that it would have been obvious to the artisan to
use various thresholds to obtain a more precise value of fly
height because fly height is known to change based on the radial
location of the transducer over the disk. Appellants argue that
Meyer does not teach this aspect of the claimed invention.
Appellants argue that this concept is not obvious and the
examiner has provided no teaching from the prior art [brief, page
5]. The examiner responds that for any given rotational velocity
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