Appeal No. 2006-1978
Application No. 10/027,572
Obviousness is then determined on the basis of the evidence as a whole and the
relative persuasiveness of the arguments. See In re Oetiker, 977 F.2d 1443, 1445,
24 USPQ2d 1443, 1444 (Fed. Cir. 1992); 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).
With respect to the Examiner’s 35 U.S.C. § 103(a) rejection of claims 1-5,
7-11, 13, and 15-18, based on the combination of Alperovich and Lehto, after
reviewing the Examiner’s analysis (Answer, pages 4-11), 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 Brief have not
been considered and are deemed waived [see 37 CFR 41.37(c)(1)(vii)].
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