Appeal No. 2006-2918
Application 09/844,919
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, 1051, 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)].
The examiner has indicated how the invention of these claims is
deemed to be rendered obvious by the teachings of Allport and the taking of
Official Notice [final rejection, pages 6-9, incorporated into answer at page
3]. With respect to claim 9, appellant argues that although stratospheric
platforms are known in the art, the combination of a stratospheric platform
and a base station that forms a wireless local area network with user
appliances is not taught by Allport [brief, page 8]. The examiner responds
that Allport teaches that any data source could be used, and the examiner
cites Knoblach and Campbell as teaching the use of stratospheric platforms
for broadcast communications [answer, pages 6-7]. Appellant responds that
there is no teaching or suggestion for a stratospheric platform, and therefore,
the combination proposed by the examiner is a hindsight reconstruction of
the invention [reply brief, pages 3-4].
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