Ex Parte Harima - Page 10

               Appeal 2007-4070                                                                             
               Application 10/625,531                                                                       
               limitation of claim 1 (Answer at 3; FF 12–13).  Appellant did not dispute the                
               Examiner's findings based on annotated Harima Figure 1.  There is no                         
               apparent reason why Appellant could not have presented rebuttal arguments                    
               as to why the circled structure in annotated Harima Figure 1 did not meet the                
               limitation of the wire rest component of the retainer of claim 1.  Having                    
               failed to do so, we deem such arguments waived.  Accordingly, we affirm                      
               the rejection of claim 1 under 35 U.S.C. § 102(b) over Harima.  Since                        
               Appellant has not offered independent arguments against the rejection of                     
               claims 2-5, 7-8 and 10 under 35 U.S.C. § 102(b) as anticipated by Harima,                    
               we affirm that rejection without further discussion.  37 C.F.R. §                            
               41.37(c)(1)(vii).                                                                            
               IV. Obviousness                                                                              
                      A claimed invention is not patentable if the differences between what                 
               is claimed and the prior art are such that the claimed invention as a whole                  
               would have been obvious to one of ordinary skill in the art.  35 U.S.C. §                    
               103(a).  The legal conclusion of obviousness must be based on factual                        
               findings concerning the scope and content of the prior art, the differences                  
               between the prior art and the claimed invention, and the level of ordinary                   
               skill in the art.  So-called secondary considerations, including evidence of                 
               unexpected results, may provide indicia of nonobviousness or obviousness.                    
               KSR Int'l Co. v. Teleflex, Inc., 127 S.Ct. 1727, 1734, 82 USPQ2d 1385, 1389                  
               (2007); Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17-18, 148                      
               USPQ 459, 467 (1966).  The inquiry into obviousness is "expansive and                        
               flexible" and not governed by rigid rules.  KSR, 127 S.Ct. at 1739, 82                       
               USPQ2d at 1389.  On appeal, the procedural burden is on Appellant to                         
               demonstrate reversible error by the Examiner.                                                

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