Ex Parte Martinez et al - Page 5



         Appeal No. 2004-1380                                                       
         Application No. 09/513,425                                                 

         USPQ 657, 664 (Fed. Cir. 1985), cert. denied, 475 U.S. 1017                
         (1986); ACS Hosp. Sys., 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 [see 37 CFR § 41.37(c)(1)(vii)(2004)].                        
         We consider first the rejection of claims 1, 2, 7, 8, 11, 12               
         and 16-19 based on Kampe and Shearer.  These claims stand or fall          
         together as a single group [brief, page 6], and we will consider           
         independent claim 1 as the representative claim for this group.            
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