Ex Parte Shaouy et al - Page 6

               Appeal 2007-0987                                                                       
               Application 09/810,992                                                                 
               (“in the absence of evidence to support this speculation, we do not find               
               appellant’s argument persuasive”).                                                     
                     Turning to the merits of the 35 U.S.C. § 102(a) rejection of claims 18-          
               20 based on the disclosure of Forecast Pro, the Examiner indicates (Answer             
               3) how the various limitations are read on the disclosure of Forecast Pro.  In         
               particular, the Examiner directs attention to the second full paragraph                
               (designated by the Examiner as “item 1”) on page 1 of Forecast Pro.1                   
               According to the Examiner (id.), the described “historic data,” “expert                
               system,” and “forecasting technique” selection corresponds to the claimed              
               “profile element,” “arbiter,” and “personalization engine” selection.                  
                     In our view, the Examiner’s analysis is sufficiently reasonable that we          
               find that the Examiner has as least satisfied the burden of presenting a prima         
               facie case of anticipation.  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 to be waived; see 37 C.F.R.                             
               § 41.37(c)(1)(vii).                                                                    
                     Appellants’ response asserts that the Examiner has not shown how                 
               each of the claimed features is present in the disclosure of Forecast Pro so as        
               to establish a prima facie case of anticipation.  Our review of Appellants’            
               arguments (Br. 7-8; Reply Br. 2-3), however, reveals that Appellants have              
                                                                                                     
               1 The Examiner’s statement of the grounds of rejection cites various passages          
               from Forecast Page and designates them as “item” numbers, i.e., “item 1,”              
               “item 2,” etc.  Appellants’ arguments also refer to these item numbers and             
               we will also in this decision.                                                         
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