Appeal 2006-2685
Application 09/801,614
compromised data with along with a message to indicate that the data is
suspect. As argued by Appellants (Reply Br. 3), nowhere does Groshon
teach or suggest that the requested data is necessarily destroyed and a
backup file is reloaded for each destroyed file if the request for data is
unauthorized.
Schneck, on the other hand, controls access to protected data by
identifying unauthorized access and erasing the memory before its contents
may be read (col. 16, ll. 47-56). However, contrary to the Examiner’s
assertion (Answer 5), the tamper detection system of Schneck does not
suggest storing backup files for each data file and reloading the stored
backup file for each erased file.
A rejection based on section 103 must rest upon a factual basis rather
than conjecture, or speculation. “Where the legal conclusion [of
obviousness] is not supported by facts it cannot stand.” In re Warner, 379
F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA 1967). See also In re Lee, 277
F.3d 1338, 1344, 61 USPQ2d 1430, 1434 (Fed. Cir. 2002) and In re Kahn,
441 F.3d 977, 988, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006). Here, we also
remain unconvinced by the Examiner’s assertions (Answer 10-11) that the
claimed reloading the backup files for the destroyed files would have been
obvious in view of Groshon’s use of backup file for a compromised data
since Groshon does not teach that the compromised files are destroyed or the
backup file is necessarily transmitted. As discussed above, Groshon merely
suggests that a backup file may be transmitted without requiring destruction
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