Appeal No. 2002-1743
Application No. 09/047,866
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, 1051, 189 USPQ 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)].
The examiner applies Mitel as follows:
The claimed first register is said to be shown as lower item 18 in Figure 1 and
that this item stores a value indicative of a peak signal in a receive signal path. The
claimed first attenuator is said to be shown as item 9 in Figure 1 of Mitel.
The claimed second register is said to be shown as upper item 18 in Figure 1 of
Mitel and that this item stores a value indicative of a peak signal in a transmit signal
path. The claimed second attenuator is said to be shown as item 8 in Figure 1 of Mitel.
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