Appeal No. 2006-2480
Application No. 10/384,862
prima facie case of obviousness. See 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 briefs have not
been considered and are deemed to be waived [see 37 CFR
§ 41.37(c)(1)(vii)(2004)].
Regarding independent claims 1 and 10, the examiner's rejection
essentially finds that Bevan teaches every claimed feature except for deriving a
variable representing a degree of driver inattentiveness from at least one
operating variable. The examiner, however, indicates that Bevan’s driver
alertness determination accounts for different variables (e.g., the driver’s blinking
rate, heart rate, respiration, etc.) that are weighted differently. The examiner
finds that it would have been obvious to one of ordinary skill in the art at the time
of the invention to consider one type of variable (e.g., heart rate and respiration)
as a “lower” degree of driver inattentiveness that gives a different warning signal
as compared to other variables (e.g., eye blink) with a higher degree of
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