Appeal No. 2003-0408 Application 09/019,965 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 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)]. We consider first the rejection of claims 1-5, 8-12, 27 and 29 based on the teachings of Tung and Nagasawa. The examiner essentially finds that Tung teaches the claimed invention except that Tung fails to teach the camera being a digital camera. The examiner cites Nagasawa as teaching a digital camera which can capture both still and moving images. The examiner finds that it 5Page: Previous 1 2 3 4 5 6 7 8 9 10 11 NextLast modified: November 3, 2007