Appeal No. 2002-0617
Application 08/942,743
forward with evidence or argument shift to the Appellants.
Oetiker, 977 F.2d at 1445, 24 USPQ at 1444. See also Piasecki,
745 F.2d at 1472, 223 USPQ at 788.
An obviousness analysis commences with a review and
consideration of all the pertinent evidence and arguments. “In
reviewing the [E]xaminer’s decision on appeal, the Board must
necessarily weigh all of the evidence and arguments.” Oetiker,
977 F.2d at 1445, 24 USPQ2d at 1444. “[T]he Board must not only
assure that the requisite findings are made, based on evidence of
record, but must also explain the reasoning by which the findings
are deemed to support the agency’s conclusion.” In re Lee, 277
F.3d 1338, 1344, 61 USPQ2d 1430, 1434 (Fed. Cir. 2002). With
these principles in mind, we commence review of the pertinent
evidence and arguments of Appellants and Examiner.
Appellants argue that neither Kanevsky nor Menezes teaches
or suggests the protection of software from unauthorized use by
having the challenge means embedded in the protected item of
software that is distributed to the user and others. Appellants
argue that the challenge means prevents the software from being
used without authorization and has the seller’s public key
embedded in it. The seller obtains the buyer’s public key and
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