Appeal No. 2006-2228
Application No. 10/231,678
demodulated before the information is available for use. Thus, the information,
while on the carrier wave, is unavailable to the computer for performing the
functions recited in claim 35. It is also likely that all the information necessary
to perform the functions of claim 35 never exists within the carrier wave at any
one time. In other words, it is typical for information that is
transmitted by carrier wave to begin to be received at the receiver before all the
information is transmitted. Therefore, it appears to us that a program product
for carrying out the claimed invention cannot exist while the information is
being transmitted on a carrier wave.
We are sympathetic to appellant’s concerns regarding the practical needs
caused by today’s technology. When technology begins to outpace the patent
laws, a question such as the one presented on this appeal can occur. The
question of what constitutes statutory subject matter is best resolved by the
Congress or by an Article III court. We could reverse this rejection because it
raises a new question of patentability, and the limited question presented
on this appeal never gets resolved because panel decisions of the Board are non-
precedential. By affirming the examiner’s rejection, however, we have at least
given appellant an opportunity to have this decision considered by a higher
authority.
In summary, we have sustained the examiner’s rejection of the claims on
appeal. Therefore, the decision of the examiner rejecting claims 35, 37, and 38
is affirmed.
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