Appeal No. 2002-2318
Application 09/652,520
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 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)].
With respect to the independent claims, the examiner
notes that Pouschine discloses aggregating a data measure
for descendants of a member of a selected member in a
multidimensional database, and storing the aggregate value
with the member [final rejection, pages 4 and 5]. However,
the examiner admits that Pouschine does not teach or suggest
performing the aggregating and storing steps for each member
of the selected level having more descendants than a
predetermined threshold value [id.]. The examiner then
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