Appeal No. 2002-2321
Application 09/283,268
ordinary skill in the art. Uniroyal, Inc. v. Rudkin-Wiley Corp.,
837 F.2d 1044, 1051, 5 USPQ2d 1434, 1438 (Fed. Cir. 1988);
Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d
281, 293, 227 USPQ 657, 664 (Fed. Cir. 1985), cert. denied, 475
U.S. 1017 (1986); ACS Hosp. Sys., Inc. v. Montefiore Hosp., 732
F.2d 1572, 1577, 221 USPQ 929, 933 (Fed. Cir. 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 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)].
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