Appeal No. 2000-2211
Application No. 09/031,316
Appellants argue (brief, page 7) that:
Claim 24 recites a computer-readable medium (such
as memory) storing the unique CreateDIBSection function
. . . . As such, the function has a physical presence
in memory, which allows its functionality (the
function’s execution) to be realized by calling it.
Inasmuch as claim 24 is drafted to include only the computer
readable medium and its content (i.e., an operating system
function referred to by the name of CreateDIBSection, and
comprised of six function parameters a through f), and does not
include the “function call from an application program,” this
claim lacks any “functionality” in the absence of a calling by
the application program. In the absence of a calling by the
application program, we agree with the examiner that the computer
readable medium1 and its content have no practical application.
State Street Bank & Trust Co. v. Signature Fin. Group, Inc.,
149 F.3d 1368, 1373, 47 USPQ2d 1596, 1601 (Fed. Cir. 1998). The
content of the computer readable medium remains as “abstract
ideas until reduced to some type of practical application” by a
calling by the application program. AT&T Corp. v. Excel
Communications, Inc., 172 F.3d 1352, 56-57, 50 USPQ2d 1447, 1451
1In In re Lowry, 32 F.3d 1579, 1581, 32 USPQ2d 1031, 1033
(Fed. Cir. 1994), the content of the computer readable medium was
“used by said application program.”
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