Appeal No. 95-0633
Application 07/728,426
examiner’s answer were filed in 1994. The Board remanded
this case to the examiner in 1995 for consideration of the
applicability of the Commissioner’s published “Examination
Guidelines for Computer-Implemented Inventions.” On remand,
the examiner determined that the rejection under 35 U.S.C. §
101 was still proper, and the case is now before us for
decision on the merits.
The examiner’s rejection applies the two-step test which
is now commonly referred to as the Freeman-Walter-Abele test.
See In re Freeman, 573 F.2d 1237, 197 USPQ 464 (CCPA 1978) as
modified by In re Walter, 618 F.2d 758, 205 USPQ 397
(CCPA 1980). The test has been thus articulated:
First, the claim is analyzed to
determine whether a mathematical
algorithm is directly or indirectly
recited. Next, if a mathematical
algorithm is found, the claim as a
whole is further analyzed to determine
whether the algorithm is “applied in any manner
to physical elements or process steps,” and,
if it is, it “passes muster under § 101.”
In re Pardo, 684 F.2d 912, 915, 214 USPQ 673, 675-76 (CCPA
1982)
(citing In re Abele, 684 F.2d 902, 214 USPQ 682 (CCPA 1982)).
Although the examiner applied the Freeman-Walter-Abele test in
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