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
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