Appeal No. 1998-2848
Application 08/398,862
Limitations will not be read into the claims from the
specification to make the claimed subject matter statutory.
Moreover, it is not clear what limitations Appellant would
have read in from the specification.
Appellant argues (Br16-17):
From the above it is clear that it is not a data
structure per se or a computer program per se (so-called
Functional Descriptive Material) which is claimed. See
M.P.E.P. 2106 B 1.(a): "Data Structures [sic] not
claimed as embodied in computer-readable media are
descriptive material per se and are not statutory because
they are neither physical 'things' nor statutory
processes." The present claims are clearly different and
directed to different subject matter than was claimed in
Warmerdam, 33 F.3d, 1361, 31 USPQ2d, 1760 [cited in
footnote 30 in the Guidelines to the quotation] where a
claim to a data structure per se was held nonstatutory.
While the invention may be worked using a series of steps
to be performed on a computer (e.g. in case of on-line
ETCs), the system according to the invention may as well
be implemented by using physical trading cards containing
the particular ETC format (i.e. ETCs on physical media).
But even in the former case, the invention does not
merely manipulate an abstract idea or solve a purely
mathematical problem without any limitation to a
practical application. With the present invention,
electronic trading cards must be produced or created,
distributed or traded, then collected, and offer some
kind of reward when a series of ETCs has been completed.
Electronic trading cards can be viewed, either on a
computer screen or on some other physical media (see
order, In re Gary M. Beauregard, et al., Case
No. 95-1054, Fed. Cir., 12 May 1995) ("Connector [sic ?]
Programs Embodied in a Tangible Medium ...are patentable
subject matter under 35 USC § 101...".
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