Ex Parte FLORENCIO - Page 4




          Appeal No. 2002-1309                                   Page 4               
          Application No. 09/286,760                                                  

          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           
          by appellant [see 37 CFR § 1.192(a)].                                       
          The examiner has indicated how he finds the claimed                         
          invention to be obvious over the teachings of Singhal.  The                 
          examiner asserts that although Singhal does not use the term                
          “requantization error,” the examiner finds that the variance                
          processor 8 of Singhal is equivalent.  The examiner asserts that            
          it would have been obvious to the artisan to recognize that                 
          Singhal discloses an element which performs the claimed functions           
          [answer, pages 3-4].                                                        






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