Appeal No. 2006-1595
Application No. 09/798,484
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 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 CFR §
41.37(c)(1)(vii)(2004)].
Regarding independent claims 1, 12, and 22, the examiner essentially
finds that Burgoon teaches every claimed feature except for (1) the first logic
identifying hierarchy paths within the source code model, and (2) the second
logic identifying hierarchy paths within the source code model corresponding to
the HDL model [answer, pages 13 and 14]. The examiner cites Parson as
teaching such limitations and contends that it would have been obvious to the
skilled artisan at the time of the invention to include the first and second logic
elements as taught by Parson in the system of Burgoon to allow a complete
hierarchical design path in logging error messages and other messages [id.].
Appellants argue that the recited third and fourth logic elements are not
disclosed by Burgoon as the examiner alleges [brief, pages 12 and 13].
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