Appeal No. 2002-2056
Application No. 09/152,471
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 USPQ
685, 687 (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 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 (see 37 CFR 1.192(a)).
It is the examiner’s position that MacDonald discloses the
claimed subject matter but for the claimed output functions
“generating at least one correlation for one pair of project
parameters on the predetermined list.” The examiner turns to
Martin for a suggestion of correlation of all data (quantities;
hours; and dollars) by a project controls group that monitors and
correlates costs and schedule data into a management information
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