Appeal No. 2006-0688
Application No. 09/838,425
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 has indicated how the claimed invention is deemed to be rendered
obvious by the teachings of the applied references [answer, pages 8-15]. Appellants
argue that none of the references teach or suggest the specific methodology recited in
claim 1. Specifically, appellants argue that the scenario comparison of Kelly has
nothing to do with determining if series are the same, overlap, etc. Appellants also
argue that the comparison in Kelly does not use a Boolean variable as claimed. With
respect to Deitel, appellants argue that the code cited by the examiner does not relate
to any Boolean attribute, but instead, relates to an array size. Appellants argue that the
examiner has pointed to portions of the references that have nothing to do with the
claimed invention [brief, pages 12-21]. The examiner responds that the claim limitations
are merely a laundry list of operations that are well known in the art. The examiner
asserts that performing these well known operations on specific variables and using a
specific data type is an obvious design choice [answer, pages 21-26]. Appellants
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