Appeal No. 2003-0322
Application No. 09/569,476
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 [see 37 CFR 1.192 (a)].
It is the examiner’s position that Walker discloses the instant claimed invention
but for “automatically and without requiring user input, successively providing over a
period of time each of a plurality of portions of the representation of the puzzle object
having at least one actual solution.” The examiner turns to Jacobs for a teaching of an
anagram puzzle using a set of symbols and contends that Jacobs’ teaching of a hint, in
the way of a free letter, is a teaching of the claimed “automatically and without requiring
user input...” (Answer, page 4).
The examiner concludes that it would have been obvious “to incorporate the hint
feature of Jacobs in Walker’s electronic word game puzzle. Doing so gives a player a
jump-start to solving the puzzle as quickly as possible without providing an initial guess
at a letter or picture (piece of puzzle)” (Paper No. 8-pages 3-4).
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