Appeal No. 2006-1654
Application No. 09/929,488
upon by the examiner as support for the rejections. We have, likewise,
reviewed and taken into consideration, in reaching our decision, the
appellant’s arguments set forth in the briefs along with the examiner’s
rationale in support of the rejections and arguments in rebuttal set forth in
the examiner’s answer. 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 briefs have not been considered
and are deemed to be waived. See 37 C.F.R.§ 41.37(c) (1)(vii)(2004). See
also In re Watts, 354 F.3d 1362, 1368, 69 USPQ2d 1453, 1458 (Fed. Cir.
2004).
It is our view, after consideration of the record before us, that the
evidence relied upon supports each of the examiner’s rejections of the
claims on appeal. Accordingly, we affirm.
In rejecting claims under 35 U.S.C. § 103, it is incumbent upon the
examiner to establish a factual basis to support the legal conclusion of
obviousness. See In re Fine, 837 F.2d 1071, 1073, 5 USPQ2d 1596, 1598
(Fed. Cir. 1988). In so doing, the examiner is expected to make the factual
determinations set forth in Graham v. John Deere Co., 383 U.S. 1, 17, 148
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