Appeal No. 2003-2149 Page 7
Application No. 09/498,379
(D) Evaluating evidence of secondary considerations.
Against this background, the obviousness or non-obviousness of the claimed
subject matter under 35 U.S.C. § 103 must be determined.
Thus, initially, the scope and content of the prior art are to be determined. As set
forth above, in the prior art rejection before us in this appeal (final rejection, pp. 2-3), the
examiner did briefly set forth the scope and content of Obata and Mott.
Secondly, the differences between the applied prior art (i.e., Obata) and the
claims at issue are to be ascertained. This the examiner has not done. While the
examiner did state with respect to claim 57 that "Obata does not specifically teach
applying the encryption key and decryption key to a playback device," this does not
constitute the differences between Obata and claim 57. Clearly, Obata does not teach
or suggest steps c), d) and e) of claim 57. The examiner did not ascertain the
differences between Obata and independent claim 59.
Thirdly, the examiner must determine if the ascertained differences between the
subject matter sought to be patented and the combined teachings of the applied prior
art are such that the subject matter as a whole would have been obvious at the time the
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