Appeal No. 2003-0033
Application No. 09/186,546
modifying the system of Sourgen to use a second/different algorithm to decrypt the
second data.
From our review of the teachings of Sourgen, Sourgen is concerned with having
different data treated differently, and we find no evidence or motivation to use two
different algorithms on the integrated circuit in the teachings of Sourgen alone. The
examiner concludes that the second permutation circuit would provide enhanced
security and “nothing in Sourgen’s disclosure precludes such a modification, and in fact
the disclosure almost suggests such an improvement. Sourgen does not teach why his
device does not include a second permutation circuit inside control unit UC, but one can
easily surmise the reason is in the associated cost of the control unit UC.” (See answer
at page 9.) From the examiner’s discussion and analysis it is clear that the examiner
has based his rejection upon impermissible hindsight in an attempt to reconstruct the
claimed invention. Clearly, this is improper and the examiner has based the rejection
upon speculation and reliance on the negative inference that Sourgen does not teach
that you can’t have a second algorithm as a motivation to have a second algorithm. In
order for us to sustain the Examiner's rejection under 35 U.S.C. § 103, we would need
to resort to speculation or unfounded assumptions or rationales to supply deficiencies in
the factual basis of the rejection before us. In re Warner, 379 F.2d 1011, 1017, 154
USPQ 173, 178 (CCPA 1967), cert. denied, 389 U.S. 1057 (1968), rehearing
denied, 390 U.S. 1000 (1968).
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