Appeal No. 2003-0050
Application 09/240,208
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 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)].
We consider first the rejection of claims 25 and 26 based
on the teachings of Shelton taken alone. The examiner’s findings
with respect to Shelton are erroneous for reasons discussed above
with respect to claim 17. Since Shelton does not support the
examiner’s findings, the examiner has failed to establish a prima
facie case of the obviousness of these claims. Accordingly, we
do not sustain the examiner’s rejection of claims 25 and 26.
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