Appeal No. 2001-2403
Application No. 08/851,040
argues that such claims must fall within the safe harbors listed
in MPEP § 2106 in order to be statutory (id.).
We disagree with the Examiner that the claims, in order to
be statutory, must fall within the required safe harbors since
the appealed claims do not recite an algorithm performed on a
computer. Furthermore, contrary to the Examiner’s position,
human involvement in performing some of the steps of the claimed
process is not enough to make the claims non-statutory. Although
processes that require humans to subjectively make a selection or
judgment may be non-statutory or indefinite, here the outcome of
the claimed process does not depend on any subjective judgments,
but rather includes objective actions by humans such as entering,
moving, looking and purchasing a selected item.
We also find that a prima facie case of non-statutory
subject matter has not been provided as the Examiner has failed
to follow the guidelines set forth in State Street Bank & Trust
Co. v. Signature Financial Group, Inc., 149 F.3d 1368, 47 USPQ2d
1596 (Fed. Cir. 1998), AT&T Corp. v. Excel Communications, Inc.,
172 F.3d 1352, 50 USPQ2d 1447 (Fed, Cir. 1999) and Ex Parte
Bowman, 61 USPQ2d 1669 (Bd. Pat. Appl. & Int. 2001)(unpublished).
The Examiner appears to have ignored that a determination of non-
statutory subject matter needs more than stating that the claimed
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