Appeal No. 2006-1092
Application No. 08/948,530
to those of ordinary skill in the art. In re Kahn, 441 F.3d 977, 987-88, 78
USPQ2d 1329, 1336 (Fed. Cir. 2006) citing In re Kotzab, 217 F.3d 1365, 1370,
55 USPQ2d 1313 (Fed. Cir. 2000). See also In re Thrift, 298 F. 3d 1357, 1363,
63 USPQ2d 2002, 2008 (Fed. Cir. 2002). 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 appellant
have been considered in this decision. Arguments which appellant 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)].
Regarding independent claim 6, the examiner's rejection essentially finds
that Ginsberg teaches every claimed feature except for a service control point
(SCP) processor that receives agent information from a plurality of call centers
and stores such information in a database to route incoming calls to the call
center [answer, pages 3 and 4]. The examiner cites Becker as disclosing a call
5
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