Appeal No. 2006-1957
Application No. 10/301,394
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).
With respect to the Examiner’s 35 U.S.C. § 103(a) rejection of independent
claims 1 and 36 based on the combination of Li and Haas, after reviewing the
Examiner’s analysis (Answer, pages 3 and 4), it is our opinion that the stated position is
sufficiently reasonable that we find that the Examiner has at least satisfied the burden of
presenting a prima facie case of obviousness. The burden is, therefore, upon
Appellants to come forward with evidence and/or arguments which persuasively rebut
the Examiner’s prima facie case. 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 waived
[see 37 CFR § 41.37(c)(1)(vii)].
With respect to independent claims 1 and 36, Appellants’ arguments in response
to the Examiner’s 35 U.S.C. § 103(a) rejection assert a failure to establish a prima facie
case of obviousness since all of the claimed limitations are not taught or suggested by
the applied prior art references. After careful review of the disclosures of Li and Haas in
light of the arguments of record, we are in general agreement with the Examiner’s
position as stated in the Answer.
Initially, we do not find to be persuasive Appellants’ attack on the Examiner’s
reliance on Li and Haas by asserting that the Li and Haas references do not disclose
that nodes within a cluster are arranged in a plurality of “node levels.” We make the
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