Appeal No. 2006-1193 6
Application No. 09/961,036
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
briefs have not been considered and are deemed to be waived. See 37
C.F.R. §41.37(c)(1)(vii) (2004).
We first consider the examiner’s rejection of claims 17, 19, 21, 23, and
25 under 35 U.S.C. § 103(a) as being unpatentable over Agarwala in view of
Yi [answer, page 3]. Since appellants’ arguments with respect to this
rejection have treated these claims as a single group which stand or fall
together, we will consider independent claim 17 as the representative claim
for this rejection.
Appellants argue that the examiner has failed to establish a prima
facie case of obviousness because the cited Agarwala and Yi references do
not teach the claimed arrangement of metal layers [brief, page 10].
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