Appeal No. 2006-1910 Application No. 09/910,654 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)]. As noted above, the basis for the examiner’s rejection is the same as was set forth in the previous decision by the Board in this application. With respect to independent claims 1 and 15, which are the only claims argued by appellant in the briefs, appellant essentially makes the following arguments: 1) The examiner and the Board misconstrued the teachings of ARC with respect to the storing of an image of the agent 5Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 NextLast modified: November 3, 2007