Ex Parte Countryman et al - Page 5



          Appeal No. 2003-0330                                                        
          Application No. 09/533,805                                                  
          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 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 by                     
          appellants [see 37 CFR § 1.192(a)].                                         
          With respect to independent claims 1, 13, 23 and 32, the                    
          examiner essentially finds that Donovan teaches the claimed                 
          invention except that Donovan does not specifically disclose                



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