Appeal No. 2005-0560
Application No. 09/873,127
(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)].
The examiner’s rejection essentially finds that Kobayashi
teaches the claimed invention except that Kobayashi does not
teach a collimating lens between input and output optical fibers.
The examiner asserts that collimating lenses used in this manner
are well known in the fiber switching art as taught by Mock. The
examiner finds that it would have been obvious to the artisan to
modify the Kobayashi device to have collimating lenses between
the input and output fibers as taught by Mock [answer, pages 3-
4].
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