Appeal No. 2004-1558
Application No. 09/283,386
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.
With regard to independent claims 1, 5, 9, and 13 the examiner applies Devic to
the claims as follows:
The “capturing...hardware-level instructions” and the storing of these instructions
in memory is said to be taught by Devic at column 8, line 44, through column 9, line 4.
The examiner recognizes that Devic “does not expressly teach defining the
captured hardware-level instructions to the host operating system” (answer-page 4), but
the examiner turns to OGL for a disclosure “that the start of a display list is specified by
glNewList (Gluint list, Glenum mode); with the parameter list being a unique integer
identifying the display list and the parameter mode identifying whether the display list is
to be compiled for later execution or compiled for later execution as well as immediate
execution at pg. 126" (answer-page 4).
The examiner concludes that it would have been obvious to combine Devic and
4
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