Appeal No. 2003-1659
Application No. 09/193,662
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 [see 37 CFR
§ 1.192(a)].
The examiner’s rejection essentially finds that Anderson
teaches the claimed invention except that Anderson does not
disclose an ATM host. The examiner cites Vak as teaching a
communications network for an ATM or POS system. The examiner
finds that it would have been obvious to the artisan to use an
ATM in Anderson as taught by Vak.
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